EXHIBIT 99.1
FORBEARANCE AGREEMENT
This FORBEARANCE AGREEMENT ("Agreement"), dated as of March 7, 2002, 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").
B. Parent and Borrower have notified Agent and the Lenders that an Event of
Default (as defined in the Credit Agreement) has occurred under Section 12.2 of
the Credit Agreement as a result of Parent's failure to comply with the covenant
set forth therein as of February 28, 2002 and for the four (4) Fiscal Quarter
period then ending (the "Existing Default").
C. Parent and Borrower have requested that Agent and the Lenders forbear
from exercising their available rights and remedies arising as a result of the
Existing Default. Parent and Borrower have also requested that Borrower be able
to continue to request and receive Revolving Loans under the Credit Agreement
notwithstanding the Existing Default.
AGREEMENTS:
NOW, THEREFORE, 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 agree as follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. Capitalized terms used in this Agreement, to the
extent not otherwise defined herein, shall have the same meanings as in the
Credit Agreement, as amended hereby.
ARTICLE 2
Forbearance Provisions
Section 2.1 Forbearance ; Continued Extension of Credit; Borrower
Agreements. Subject to the terms and provisions of this Agreement, Agent and the
Lenders agree to forbear until March 31, 2002 (the "Expiry Date") from
exercising their available rights and remedies under the Credit
FORBEARANCE AGREEMENT - Page 1
Agreement and the other Loan Documents arising as a result of the Existing
Default (the "Forbearance"). Notwithstanding that pursuant to Section 8.3(a) of
the Credit Agreement the Lenders have no obligation to do so as a result of the
Existing Default, the Lenders agree, subject to the terms of this Agreement and
the Credit Agreement, to continue to make Revolving Loans pursuant to the Credit
Agreement until the Termination Date (as defined below), provided that for
purposes of the foregoing obligation to continue to make Revolving Loans (but
excluding any other purposes under the Credit Agreement including, without
limitation, calculation of fees pursuant to Section 4.6 of the Credit
Agreement), the aggregate amount of the Revolving Commitments shall not exceed
$12,000,000 (any advance made pursuant to this sentence, herein a "Default
Advance"). As a result of the Existing Default, Borrower shall not be permitted
to request Libor Accounts, Continue Libor Accounts, or Convert Base Rate
Accounts to Libor Accounts.
Section 2.2 Termination of Forbearance. This Agreement does not constitute
a waiver or forbearance with respect to any Default other than the Existing
Default. In the event that prior to the Expiry Date any further Defaults occur
under the Credit Agreement (i.e., other than the Existing Default), then Agent
and the Lenders shall have the option, at their sole discretion and without
notice to Parent or Borrower, to stop making Default Advances, terminate the
Forbearance, and exercise any and all of the rights and remedies available to
Agent and the Lenders under the Loan Documents or otherwise arising as a result
thereof (the earlier of the Expiry Date or the date the Forbearance is
terminated under this Section 2.2, herein the "Termination Date").
Section 2.3 No Waivers. Parent and Borrower agree that by entering into
this Agreement, neither Agent nor any Lender waives, beyond the Termination
Date, any rights or remedies it may have with respect to the Existing Default
and that the Existing Default may be asserted after the Termination Date. After
the Termination Date, Agent and the Lenders may pursue all rights and remedies
arising as a result of the Existing Default without notice of any kind to Parent
and Borrower.
Section 2.4 Tolling. All periods of limitations specified by statutes and
all defenses of laches or waiver as to any Existing Default will be tolled and
otherwise suspended during the period from the date hereof through the date
which is ninety (90) days after the Termination Date.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions. The effectiveness of the Forbearance is subject to
the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein and in all
other Loan Documents shall be true and correct in all material respects as
of the date hereof as if made on the date hereof, except with respect to
existence of the Existing Default or for such representations and
warranties limited by their terms to a specific date;
FORBEARANCE AGREEMENT - Page 2
(b) Borrower shall have paid to Agent, for the benefit of each Lender
providing to Agent its executed signature page hereto on or before 12:00
noon (Dallas, Texas time) March 7, 2002, a fee in an amount equal to
one-eighth percent (0.125%) of each such Lender's outstanding Term Loans
and Revolving Commitment (as adjusted for the reduction in Revolving
Commitments during the term of the Forbearance as specified in Section 2.1
of this Agreement);
(c) No Default, other than the Existing Default, shall have occurred
and be continuing; and
(d) All proceedings taken in connection with the transactions
contemplated by this Agreement and all documentation and other legal
matters incident thereto shall be satisfactory to Agent and its legal
counsel.
ARTICLE 4
Ratification; Release; and Representations and Warranties
Section 4.1 Ratification. 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. Each of Parent, Borrower, Agent, and the Lenders agree
that the Credit Agreement and the other Loan Documents shall continue to be
legal, valid, binding, and enforceable in accordance with their respective
terms. Parent and Borrower agree to strictly comply with the terms of the Loan
Documents.
Section 4.2 Release. TO INDUCE AGENT AND THE LENDERS TO AGREE TO THE TERMS
OF THIS AGREEMENT, PARENT AND BORROWER REPRESENT AND WARRANT THAT AS OF THE DATE
OF THIS AGREEMENT THERE ARE NO CLAIMS OR OFFSETS AGAINST OR DEFENSES OR
COUNTERCLAIMS TO THEIR RESPECTIVE OBLIGATIONS UNDER THE LOAN DOCUMENTS, AND
WAIVE ANY AND ALL SUCH CLAIMS, OFFSETS, DEFENSES, OR COUNTERCLAIMS, WHETHER
KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE OF THIS AGREEMENT AND RELEASE AND
DISCHARGE 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 PARENT OR BORROWER
NOW HAS 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 4.3 Representations and Warranties. Parent and Borrower hereby
represent and warrant to Agent and the Lenders as follows: (a) except for the
Existing Default, no Default or Event of Default has occurred and is continuing;
(b) subject to the existence of the Existing Default, the representations and
warranties set forth in the Loan Documents are true and correct in all material
FORBEARANCE AGREEMENT - Page 3
respects on and as of the date hereof with the same effect as though made on and
as of such date except with respect to any representations and warranties
limited by their terms to a specific date; (c) the execution, delivery, and
performance of this Agreement has been duly authorized by all necessary action
on the part of Parent and Borrower and does not and will not: (i) violate any
provision of law applicable to Parent or Borrower, the certificate of
incorporation, bylaws, or other applicable governing document of Parent or
Borrower or any order, judgment, or decree of any court or agency of government
binding upon Parent or Borrower; (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
material contractual obligation of Parent or Borrower; (iii) result in or
require the creation or imposition of any material Lien upon any of the assets
of Parent or Borrower; or (iv) require any approval or consent of any Person
under any material contractual obligation of Parent or Borrower; (d) the
articles of incorporation, bylaws,, or other applicable governing document of
Parent and Borrower and the resolutions of Parent and Borrower attached to the
Corporate Certificate of each of Parent and Borrower delivered in connection
with the Credit Agreement have not been modified or rescinded and remain in full
force and effect, and (e) the principal amount of the Outstanding Revolving
Credit and outstanding Term Loans as of March 6, 2002 is as set forth below
opposite the applicable Loan:
Loan Principal Amount
---- ----------------
Outstanding Revolving Credit $ 7,505,000.00
Term Loans $22,479,855.20
ARTICLE 5
Miscellaneous
Section 5.1 Governing Law; Venue; Service of Process. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS
AND THE APPLICABLE LAWS OF THE U.S. ANY ACTION OR PROCEEDING AGAINST PARENT OR
BORROWER UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN ANY
TEXAS STATE COURT LOCATED IN DALLAS COUNTY,
TEXAS OR
FEDERAL COURT IN THE NORTHERN DISTRICT OF
TEXAS. EACH OF PARENT AND BORROWER
IRREVOCABLY (a) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND (b)
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH
ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. EACH OF PARENT AND BORROWER AGREES THAT SERVICE OF PROCESS UPON IT MAY BE
MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS
SPECIFIED OR DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 16.13 OF
THE CREDIT AGREEMENT. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL
AFFECT THE RIGHT OF AGENT OR ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
FORBEARANCE AGREEMENT - Page 4
OF AGENT OR ANY LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST PARENT OR
BORROWER OR WITH RESPECT TO ANY OF ITS PROPERTY IN COURTS IN OTHER
JURISDICTIONS. ANY ACTION OR PROCEEDING BY ANY LOAN PARTY AGAINST AGENT OR ANY
LENDER SHALL BE BROUGHT ONLY IN A COURT LOCATED IN DALLAS COUNTY,
TEXAS.
Section 5.2 Successors and Assigns. This Agreement shall inure to the
benefit of and is binding upon Borrower, Parent, Agent, the Lenders, and their
respective successors and assigns, except neither Parent nor Borrower may assign
or transfer any of its rights or obligations hereunder without the prior written
consent of the Lenders.
Section 5.3 Counterparts. This Agreement may be executed in one or more
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 5.4 Effect of Waiver. 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 or Borrower shall be deemed a consent or waiver to
or of any other breach of the same or any other covenant, condition, or duty.
Section 5.5 Headings. The headings, captions, and arrangements used in this
Agreement are for convenience only and shall not affect the interpretation of
this Agreement.
Section 5.6 Cumulative Remedies; No Election. The rights and remedies
provided for in this Agreement and the other Loan Documents are cumulative and
not exclusive of any rights and remedies provided by law. The exercise by Agent
or any Lender of any right or remedy under this Agreement or under any other
Loan Document or at law or in equity, shall not preclude the concurrent or
subsequent exercise of any other right or remedy.
Section 5.7 Entire Agreement; Amendment. THIS AGREEMENT EMBODIES THE FINAL,
ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THE SUBJECT MATTER HEREOF 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. The provisions of this Agreement may be amended or waived only
by an agreement in writing signed by the parties hereto.
Section 5.8 Severability. Any provision of this Agreement held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
FORBEARANCE AGREEMENT - Page 5
Section 5.9 Survival. All representations and warranties made in this
Agreement shall survive the execution and delivery of this Agreement and no
investigation by Agent or any Lender or any closing shall effect the
representations and warranties of the right of Agent and the Lenders to rely
upon them.
Section 5.10 Construction. Parent and Borrower acknowledge that each of
them has had the benefit of legal counsel of its own choice and had been
afforded an opportunity to review this Agreement with its legal counsel and that
this Agreement shall be construed if jointly drafted by the parties hereto.
Section 5.11 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT, ANY OF THE LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
THEREBY OR THE ACTIONS OF AGENT OR ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, OR ENFORCEMENT THEREOF.
Section 5.12 Expenses. In accordance with the Credit Agreement, Borrower
agrees to pay on demand all attorneys fees and other costs and expenses incurred
by Agent and the Lenders in connection with this Agreement.
[Remainder of page intentionally left blank]
FORBEARANCE AGREEMENT - Page 6
Executed as of the date first written above.
BORROWER:
BRITE VOICE SYSTEMS, INC.
By: /s/ XXX-XXX X. XXXXXX
-------------------------------------
Name: Xxx-Xxx X. Xxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
PARENT:
INTERVOICE-BRITE, INC.
By: /s/ XXX-XXX X. XXXXXX
-------------------------------------
Name: Xxx-Xxx X. Xxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
AGENT and ISSUING BANK:
BANK OF AMERICA, NATIONAL
ASSOCIATION (successor by merger to Bank
of America National Trust and Savings
Association), as Agent
By: /s/ XXXXXXX X. XXXXXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
FORBEARANCE AGREEMENT - Page 7
LENDERS:
BANK OF AMERICA, NATIONAL ASSOCIATION
(successor by merger to Bank
of America National Trust and Savings
Association)
By: /s/ XXXXXXX X. XXXXXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
FORBEARANCE AGREEMENT - Page 0
XXXX XXX, XXXXX, N.A.
By: /s/ XXXXXX XXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxx
-----------------------------------
Title: First Vice President
----------------------------------
FORBEARANCE AGREEMENT - Page 9
U.S. BANK NATIONAL ASSOCIATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
FORBEARANCE AGREEMENT - Page 10
FLEET NATIONAL BANK
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
-----------------------------------
Title: Director
----------------------------------
FORBEARANCE AGREEMENT - Page 11
IBM CREDIT CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
FORBEARANCE AGREEMENT - Page 00
XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ XXXXX X. XXXXX
-------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: Vice President
----------------------------------
FORBEARANCE AGREEMENT - Page 00
XXX XXXX XX XXXX XXXXXX
By: /s/ X. XXXX
-------------------------------------
Name: X. Xxxx
-----------------------------------
Title: Assistant Agent
----------------------------------
FORBEARANCE AGREEMENT - Page 14
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ XXXXXX X. BOSHME
-------------------------------------
Name: Xxxxxx X. Boshme
-----------------------------------
Title: Exec. V.P.
----------------------------------
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: SVP
----------------------------------
FORBEARANCE AGREEMENT - Page 15
COMERICA BANK
By: /s/ X. XXXXXXXX XXXXXX
-------------------------------------
Name: X. Xxxxxxxx Xxxxxx
-----------------------------------
Title: Assistant Vice President
----------------------------------
FORBEARANCE AGREEMENT - Page 16
REAFFIRMATION OF GUARANTY AND PLEDGE AND SECURITY AGREEMENT
As a material inducement to Agent and the Lenders entering into this
Agreement, each of the undersigned hereby (a) consents to the execution and
delivery of the Forbearance Agreement (the "Agreement") to which this
Reaffirmation of Guaranty and Pledge and Security Agreement is attached by the
parties thereto, (b) that the Agreement 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, (c) reaffirms its obligations under
each of such Loan Documents, and (d) agrees that each of such Loan Documents
remains in full force and effect and is hereby ratified and confirmed.
Dated as of March 7, 2002.
INTERVOICE GP, INC.
By: /s/ XXX-XXX X. XXXXXX
-------------------------------------
Name: Xxx-Xxx X. Xxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
INTERVOICE LP, INC.
By: /s/ XXX-XXX X. XXXXXX
-------------------------------------
Name: Xxx-Xxx X. Xxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
INTERVOICE ACQUISITION
SUBSIDIARY, INC.
By: /s/ XXX-XXX X. XXXXXX
-------------------------------------
Name: Xxx-Xxx X. Xxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
FORBEARANCE AGREEMENT - Page 17
INTERVOICE ACQUISITION
SUBSIDIARY II, INC.
By: /s/ XXX-XXX X. XXXXXX
-------------------------------------
Name: Xxx-Xxx X. Xxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
INTERVOICE LIMITED PARTNERSHIP
By: InterVoice GP, Inc.
By: /s/ XXX-XXX X. XXXXXX
---------------------------------
Name: Xxx-Xxx X. Xxxxxx
-------------------------------
Title: Chief Financial Officer
------------------------------
BVSI, INC.
By: /s/ XXX-XXX X. XXXXXX
-------------------------------------
Name: Xxx-Xxx X. Xxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
BVS INVESTCO, INC.
By: /s/ XXX-XXX X. XXXXXX
-------------------------------------
Name: Xxx-Xxx X. Xxxxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
FORBEARANCE AGREEMENT - Page 18
