Exhibit 4.3
|
NEGOTIABLE PROMISSORY
NOTE
|
|
$1,747,012
|
New York, New York
|
|
|
As of January 1, 2009
|
FOR VALUE RECEIVED, PORTA SYSTEMS CORP.,
hereinafter referred to as “Borrower”, with an address
at 6851 Jericho Turnpike, Syosset, New York, 11791, hereby promises
to pay to the order of CHEYNE SPECIAL SITUATIONS FUND, L.P.,
hereinafter referred to as “Lender”, with an address at
P.O. Box 908 GT, Walker House, Mary Street, Grand Caymans, Cayman
Islands, or at such other place as the Lender or any holder hereof
may from time to time have designated, the principal sum of ONE
MILLION SEVEN HUNDRED FORTY SEVEN THOUSAND TWELVE AND NO/100
($1,747,012) DOLLARS, which shall be due and payable on April 30,
2010, together with any accrued interest, unless prepaid in
accordance with the terms of this note. Interest shall
accrue and be payable on the outstanding principal balance of this
Note at an amount equal to the six-month rate of LIBOR as reported
in the Money Rate Section of the Wall Street Journal on a
“Payment Date” (as hereafter defined) or if such
Payment Date is not a business publication date of the Wall Street
Journal, the first such publication date immediately prior to the
Payment Date, plus 10%, payable as set forth herein (this
“Note”). This Note supersedes and replaces
in its entirely that certain Negotiable Promissory Note between the
Borrower and the Lender dated November 11, 2008, as amended, in the
principal amount of one million seven hundred forty seven thousand
and twelve dollars ($1,747,012) (the “Prior
Note”). As of the date hereof, accrued interest on
the Prior Note as of December 31, 2008 is $29,608, which is hereby
added to the amounts due and owing under this Note. For avoidance
of doubt, the Prior Note superseded and replaced in its entirety
those certain Negotiable Promissory Notes between the Borrower and
the Lender dated October 23, 2007 in the principal amount of
$1,000,000 which was subsequently amended and restated on November
11, 2008 in the principal amount of $1,747,012.
1.
Payment of Principal and Interest
. Principal and interest payments of an aggregate
amount of $125,000 monthly shall be paid commencing on the last day
of January 2009, and the last day of each month thereafter with any
unpaid principal and accrued interest due on April 30,
2010. Borrower payments shall be allocated as follows:
first, to accrued interest, then to principal, and then until the
accrued interest and principal are paid in full. The Borrower may
prepay the principal due under this Note, together with accrued
interest thereon, in whole or in part, without
penalty. Interest shall be calculated on the basis of a
year of 365 days, and charged for the actual number of days
elapsed.
2.
Default . The following shall be events of
default (“ Events of Default ”)
hereunder:
(a) If
any payment of principal, interest or other sum due hereunder shall
not be made as and when the same shall become due and
payable;
(b) If
Borrower defaults under that certain Amended and Restated Loan and
Security Agreement (the “Loan Agreement”), as amended
from time to time, dated as of November 28, 1994, between Borrower
and Wells Fargo Foothill, Inc. (“Foothill”), whereby
Lender is the successor in interest of the obligations of Borrower
to Foothill, pursuant to an assignment dated February 7, 2007,
between Lender and SHF IX, LLC, a Delaware limited liability
company (“SHF IX”), Foothill’s successor in
interest pursuant to an assignment between Foothill and SHF IX
dated October 7, 2004;
(c) A
default by Borrower under this Note shall constitute an Event of
Default under the Loan Agreement.
3.
Collateral . All Collateral (as defined in the
Loan Agreement) shall secure prompt payment in full of all of
Borrower’s obligations in connection with this Note as well
as all obligations in connection with the Loan
Agreement.
4.
Due Upon Event of Default . This Note (the
entire remaining principal balance, interest and any other sums due
hereunder) shall automatically become immediately due and payable,
without further notice or demand, upon the occurrence of any Event
of Default described in Section 2 above.
5.
Collection Costs . The Borrower shall be liable for any and
all out-of-pocket costs (including reasonable attorneys’
fees
|
