TENNENBAUM CAPITAL PARTNERS, LLC
Exhibit 10.2
XXXXXXXXXX CAPITAL PARTNERS, LLC
May 20, 20l3
Via Facsimile and Overnight Carrier
Dialogic Inc. and
Dialogic Corporation
0000 Xxxx Xx Xxxxxx, Xxxxx 000
Xxxxx-Xxxxxxx, Xxxxxx
X0X 0X0 Canada
Xxxxxxxx, Xxxxxx, Xxxxxx X0X0X0
Attention: Xxxxxxx Xxxxxxxxxxx, EVP Corporate Affairs and General Counsel
Re: Waiver
Gentlemen:
Reference is hereby made to that certain Third Amended and Restated Credit Agreement by and among Dialogic Corporation, a British Columbia corporation (the “Company”), Dialogic lnc., a Delaware corporation (the “Parent”, and together with the Company, collectively, the “Principal Companies”, and individually a “Principal Company”), each of the Subsidiary Guarantors signatory thereto, the lenders party thereto (the “Lenders”) and Obsidian, LLC, a Delaware limited liability company, as agent for the Lenders (in such capacity, the “Agent”), dated as of March 22, 2012 (as amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.
1. Waivers.
(a) Compliance with Laws. The Company has informed the Agent and the Lenders that Parent anticipates that it will fail to comply with the provisions of Section 9.5(b) of the Credit Agreement to make a timely filing of its l0Q form for the period ended March 31, 2013 as it anticipates it will not be able to file the I OQ within the five day extension period that terminates at 5:30 PM on May 20, 2013. And has requested that the Agent and the Lenders waive the Events of Default that may occur as a result of such noncompliance. Subject to the terms hereof, the Agent and the Required Lenders hereby agree to waive the Events of Default under the Credit Agreement including under Section 1 l(e) of the Credit Agreement resulting solely from the failure of the Company to timely delivery the 1OQ for the period ended March 31, 2013.
(b) Financial Reporting Defaults. The Agent and the Lenders waive the requirement to deliver the financial statements for the Quarter ended March 31, 2013 and the related Compliance Certificate within 45 days as required under Section 7(b) and 7(d), respectively, of the Credit Agreement.
(c) Certain Notices and Cross-Defaults. The Agent and the Lenders waive any Event of Default under the Credit Agreement including under Section 1l(c) and (g}, respectively, (i) resulting from the failure to give notice of the matters referred to in the foregoing paragraphs
0000 00XX XXXXXX, XXXXX 0000, XXXXX XXXXXX, XXXXXXXXXX 00000
TELEPHONE 000.000.0000 FACSIMILE 310.566.1010
MAILBOX @XXXXXXXXXXXXXXXXX.XXX
DWT 22007267v2 0088604-000005
(a) and (b) pursuant to Section 7(a) of the Credit Agreement or (ii) resulting from any Event of Default under the Working Capital Agreement arising due to the matters referred to in this paragraph 1.
3. Delivery and Filing of First Quarter Fina ncial Statements and Form 10Q. The Parent hereby covenants and agrees that it will (a) deliver to Agent the financial statements for the quarter ended March 31, 2013 and the related Compliance Certificate no later than June 30, 2013 and (b) file with the SEC its Form 10Q relating to the fiscal quarter ended on March 31, 2013 no later than June 30, 2013. Any failure to comply with the foregoing shall constitute an “Event of Default” under the Credit Agreement.
4. Miscellaneous.
Except as expressly provided herein, nothing contained herein shall (i) amend, modify or alter any term or condition of the Credit Agreement or any other Loan Document or (ii) diminish, prejudice or waive any of the Agent’s rights and remedies under the Credit Agreement (including the right to require strict compliance with the terms of the Credit Agreement at any time hereafter), any other Loan Document or applicable law, and the Agent hereby reserves all of such rights and remedies. This letter agreement shall not excuse future non-compliance with the Credit Agreement and shall not be a practical construction, course of conduct or course of performance under the Credit Agreement. The Company and the Subsidiary Guarantors hereby acknowledge and reaffirm (i) all of the Loan Parties’ obligations and duties under the Loan Documents and (ii) that the Agent, for the ratable benefit of the Secured Parties, has and shall continue to have valid, secured Liens in the Collateral.
2
| Very truly yours, | ||
| OBSIDIAN, LLC, | ||
| as Agent and Collateral Agent By: Xxxxxxxxxx Capital Partners, LLC Its: Managing Member | ||
| By: /s/ Xxxxxx Xxxxxxxxx |
| Name: Xxxxxx Xxxxxxxxx |
| Title: Managing Partner |
| SPECIAL VALUE EXPANSION FUND, LLC, |
| as a Lender |
| By: Xxxxxxxxxx Capital Partners, LLC |
| Its: Investment Manager |
| By: /s/ Xxxxxxxx Xxx |
| Name: Xxxxxxxx Xxx |
| Title: Managing Partner |
| SPECIAL VALUE OPPORTUNITIES FUND, LLC, |
| as a Lender |
| By: Xxxxxxxxxx Capital Partners, LLC |
| Its: Investment Manager |
| By: /s/ Xxxxxxxx Xxx |
| Name: Xxxxxxxx Xxx |
| Title: Managing Partner |
| TENNENBAUM OPPORTUNITIES PARTNERS V, LP, |
| as a Lender |
| By: Xxxxxxxxxx Capital Partners, LLC |
| Its: Investment Manager |
| By: /s/ Xxxxxxxx Xxx |
| Name: Xxxxxxxx Xxx |
| Title: Managing Partner |
Acknowledged and agreed:
DIALOGIC CORPORATION,
a British Columbia corporation, as
the Company
By: /s/ Xxxxxxx Xxxxxxxxxxx
Xxxxxxx Xxxxxxxxxxx
EVP Corporate Affairs and General Counsel
A Delaware corporation, as
the Parent
By: /s/ Xxxxxxx Xxxxxxxxxxx
Xxxxxxx Xxxxxxxxxxx
EVP Corporate Affairs and General Counsel
SUBSIDIARY GUARANTORS
DIALOGIC DISTRIBUTION LIMITED
(a company organized under the laws of Ireland)
SIGNED SEALED AND DELIVERED
by Xxxxxxx Xxxxxxxxxxx
the lawful attorney for and on behalf of
DIALOGIC DISTRIBUTION LIMITED
| /s/ Xxxxxxx Xxxxxxxxxxx |
Authorized Signatory (Signed by Xxxxxxx Xxxxxxxxxxx)
Witness: (Signed)
DIALOGIC MANUFACTURING LIMITED
(a company organized under the laws of Ireland)
SIGNED SEALED AND DELIVERED
by Xxxxxxx
the lawful attorney for and on behalf of
DIALOGIC MANUFACTURING LIMITED
| /s/ Xxxxxxx Xxxxxxxxxxx | ||
Authorized Signatory (Signed by Xxxxxxx Xxxxxxxxxxx)
Witness: (Signed)
DIALOGIC US HOLDINGS INC.,
a Delaware corporation
Authorized Signatory /s/ Xxxxxxx Xxxxxxxxxxx
EVP Corporate Affairs and General Counsel
DIALOGIC (US) INC.,
a Delaware corporation
Authorized Signatory /s/ Xxxxxxx Xxxxxxxxxxx
EVP Corporate Affairs and General Counsel
CANTATA TECHNOLOGY, INC.,,,
a Massachusetts corporation
/s/ Xxxxxxx Xxxxxxxxxxx
EVP Corporate Affairs and General Counsel
DIALOGIC JAPAN, INC.
a Delaware corporation
/s/ Xxxxxxx Xxxxxxxxxxx
EVP Corporate Affairs and General Counsel
DIALOGIC NETWORKS (ISRAEL) LTD.
a company organized under the laws of Israel
/s/ Xxxxxxx Xxxxxxxxxxx
EVP Corporate Affairs and General Counsel
DIALOGIC DO BRASIL COMERCIO DE EQUIPAMENTOS PARA
TELECOMUNCIACAO LTDA,
a company organized under the laws of Brazil
/s/ Xxxxxxx Xxxxxxxxxxx
EVP Corporate Affairs and General Counsel
