Exhibit 10.2
SECOND FORBEARANCE AGREEMENT
THIS SECOND FORBEARANCE AGREEMENT
(this “ Agreement ”) is entered into as of
October 9, 2009, among Vitesse Semiconductor Corporation, a
Delaware corporation (the “ Borrower ”), the
other Loan Parties (as defined below), and Whitebox VSC, Ltd., a
limited partnership organized under the law of the British Virgin
Islands (the “ Agent ”). Capitalized terms
used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Loan Agreement dated as of
August 23, 2007, by and among the lenders from time to time
signatory thereto (collectively the “ Lenders ”
and individually each a “ Lender ”), the
Borrower, and the Agent, as one of the Lenders and as agent for the
Lenders.
RECITALS
WHEREAS, the Borrower and U.S. Bank
National Association (the “ Trustee ”) are
parties to that certain Indenture, dated as of September 22,
2004 (the “ Indenture ”), which governs the
Borrower’s 1.50% Convertible Subordinated Debentures due 2024
(the “ Notes ”).
WHEREAS, pursuant to the Indenture,
the Borrower has issued Notes in principal amount of $96,700,000
and certain holders of Notes (the “ Forbearing Holders
”) exercised their rights pursuant to Section 11.1 of
the Indenture and required the Borrower to repurchase their Notes
(the “ Forbearing Notes ”) on October 1,
2009 (the “ Put Repurchase Date ”).
WHEREAS, a default has occurred and
is continuing under Section 4.1(d) of the Indenture as a
result of the Borrower’s failure to mail a Repurchase Event
Notice (as defined in the Indenture) pursuant to Section 11.3
of the Indenture and a Repurchase Event Purchase Notice (as defined
in the Indenture) pursuant to Section 11.4 of the Indenture or
to file a Schedule TO pursuant to Section 11.7 of the
Indenture (the “ Notes Existing Defaults
”).
WHEREAS, the Forbearing Holders
assert (and the Borrower disputes) that an event of default has
occurred and is continuing under Section 4.1(c) of the
Indenture because of the Borrower’s failure to repurchase the
Forbearing Notes from the Forbearing Holders on the Put Repurchase
Date at a purchase price equal to 113.76% of the principal amount
of such Forbearing Notes (the “ Notes Put
Repurchase Default ” and together with the Notes Existing
Defaults, the “ Notes Specified Defaults
”).
WHEREAS, the Borrower and the
Forbearing Holders have entered into a Forbearance Agreement dated
as of October 9, 2009 in substantially the form previously
provided by the Borrower to the Agent (the “ Indenture
Forbearance Agreement ”) pursuant to which the Forbearing
Holders have agreed to forbear from exercising their rights and
remedies with respect to the Notes Specified Defaults for a certain
limited period, under the terms and conditions specified
therein.
WHEREAS, the Notes Put Repurchase
Default may result in an Event of Default under
Section 7.1(i) of the Loan Agreement and may also result
in an Event of Default under Sections
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