Exhibit 4.2
AMENDED AND RESTATED
SECURED PROMISSORY NOTE
New York, New York
US$11,601,156
FOR VALUE
RECEIVED, Porta Systems Corp. ("Maker") hereby promises to pay to
Cheyne Special Situations Fund, L.P. ("Holder"), or order, at
Stornoway House, 13 Cleveland Row, London SWIA 1DH, United Kingdom,
or at such other address as the Holder may specify in writing, the
principal sum of $11,601,156 USA pursuant to that certain Amended
and Restated Loan and Security Agreement between the Maker and
Foothill Capital Corporation, dated as of November 28, 1994 (as the
same shall be amended from time to time, the "Agreement") plus
interest in the manner and upon the terms and conditions set forth
below.
1.
Rate of Interest.
This Amended
and Restated Secured Promissory Note ("Note") includes unpaid,
accrued interest through December 31, 2008 in the amount of
$351,156 which is hereby added to the amounts due and owing under
this Note and which is not included in the principal amount
hereof. Commencing on January 1, 2009 and thereafter
this Note shall bear interest at the rate of 12½% per annum
on the outstanding principal balance, payable as indicated in
Section 2 below.
2.
Schedule of Payments of Principal and Interest.
Principal and
interest under this Note shall be due and payable as follows:
twelve quarterly installments each in the amount of $375,000, with
the first payment of principal and interest being due on June 30,
2010, followed by 13 quarterly installments of principal and
interest each in the amount of $500,000, with a final payment of
all remaining principal and accrued interest on September 30,
2016. All payments shall be applied first to accrued
interest and any remainder to principal.
3.
Prepayment.
This Note may
be prepaid at any time, in whole or in part, without any premium or
penalty whatsoever.
Maker is
required to prepay this Note under certain circumstance set forth
in the Agreement.
4.
Holder's Right of Acceleration.
Upon the
occurrence of an Event of Default under the Agreement including,
but not limited to, the failure to pay any installment of principal
or interest hereunder when due, the Holder may, at its election and
without notice to the Maker, declare the entire balance hereof
immediately due and payable.
5.
Additional Rights of Holder.
If any
installment of principal or interest hereunder is not paid when
due, the Holder shall have the right to add the unpaid interest to
principal, with such amount thereafter bearing interest from the
date that such interest is added to principal at the rate provided
in this Note in addition to the rights set forth herein, in the
Agreement, and under law.
6.
General Provisions.
(a) If
this Note is not paid when due, the Maker further promises to pay
all costs of collection, foreclosure fees, and reasonable
attorneys' fees incurred by the Holder, whether or not suit is
filed hereon.
(b) The
Maker hereby consents to any and all renewals, replacements, and/or
extensions of time for payment of this Note before, at, or after
maturity, subject to clauses (e), (f), (g), and (h)
below.
(c) The
Maker hereby consents to the acceptance, release or substitution of
security for this Note, subject to clauses (e), (f), (g), and (h)
below.
(d) Presentment
for payment, notice of dishonor, protest, and notice of protest are
hereby expressly waived.
(e) Any
waiver of any rights under this Note, the Agreement, or under any
other agreement, instrument, or paper signed by the Maker is
neither valid nor effective unless made in writing and signed by
the Holder.
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