Exhibit 4.9
AMENDMENT NUMBER FIVE TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This Amendment Number Five to Amended and Restated Loan and Security
Agreement ("Amendment") is entered into as of May 10, 2002 by and between
FOOTHILL CAPITAL CORPORATION, a California corporation ("Foothill"), and PORTA
SYSTEMS CORP., a Delaware corporation ("Borrower"), in light of the following:
A. Borrower and Foothill desire to further amend the Agreement as
provided for and on the conditions herein.
NOW, THEREFORE, Borrower and Foothill hereby amend the Agreement as
follows:
1. DEFINITIONS. All initially capitalized terms used in this Amendment
shall have the meanings given to them in the Agreement unless specifically
defined herein.
2. AMENDMENTS.
(a) The definition of "New Term Loan" in Section 1.1 of the
Agreement is amended to read as follows:
"New Term Loan" means that certain term loan in the principal amount
of up to $2,250,000 which is evidenced by that certain Amended and
Restated Secured Promissory Note, dated May 10, 2002 (the "New Term
Note"), a copy of which is attached hereto as Exhibit A.
(b) Section 2.3(a) of the Agreement is amended to read as follows:
2.3 Term Loans.
(a) Foothill has agreed to make the New Term Loan to Borrower
to be evidenced by and repayable in accordance with the terms and
conditions of the New Term Note, executed by Borrower in favor of
Foothill. All amounts evidenced by the New Term Note shall constitute
Obligations. Borrower may draw monies under the New Term Loan weekly,
subject to receipt and approval of Borrower's weekly disbursements budget;
provided, however, that all draw monies in excess to $1,500,000 shall be
made solely in the absolute discretion of Foothill. Such budgets shall be
submitted to Foothill on Friday before Noon for funding on the following
Monday.
3. EXHIBIT. Exhibit "A" hereto is hereby added to the Agreement.
4. REPRESENTATIONS AND WARRANTIES. Borrower hereby affirms to Foothill
that (a) all of Borrower's representations and warranties set forth in the
Agreement
(except for those set forth in Sections 5.10 and 5.11) are true, complete and
accurate in all respects as of the date hereof.
5. CONDITIONS PRECEDENT AND SUBSEQUENT.
(a) The effectiveness of this Amendment is expressly conditioned
upon the receipt by Foothill of:
(i) an executed copy of this Amendment, and
(ii) the New Term Note.
6. COSTS AND EXPENSES. Borrower shall pay to Foothill all of Foothill's
out-of-pocket costs and expenses (including, without limitation, the fees and
expenses of its counsel, which counsel may include any local counsel deemed
necessary, search fees, filing and recording fees, documentation fees, appraisal
fees, travel expenses, and other fees) arising in connection with the
preparation, execution, and delivery of this Amendment and all related
documents.
7. LIMITED EFFECT. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provisions of the Agreement, the
terms and provisions of this Amendment shall govern. In all other respects, the
Agreement, as amended and supplemented hereby, shall remain in full force and
effect.
8. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which when so executed and delivered shall be deemed to be an original. All
such counterparts, taken together, shall constitute one and the same Amendment.
This Amendment shall become effective upon the execution of a counterpart of
this Amendment by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first set forth above.
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ [ILLEGIBLE]
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Title: Senior Vice President
PORTA SYSTEMS CORP.,
a Delaware corporation
By: /s/ [ILLEGIBLE]
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Title:
AMENDED AND RESTATED
SECURED PROMISSORY NOTE
$2,250,000 Los Angeles, California
May 10, 2002
FOR VALUE RECEIVED, the undersigned ("Maker") hereby promises to pay to
FOOTHILL CAPITAL CORPORATION ("Foothill"), or order, at 0000 Xxxxxxxx Xxxxxx,
Xxxxx 0000X, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, or at such other address as the
holder may specify in writing, the principal sum of $2,250,000 or such lesser
sum as is advanced by Holder to Maker as the New Term Loan under that certain
Amended and Restated Loan And Security Agreement between the Maker and Foothill,
dated as of November 28, 1994 (as amended, 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") shall
bear interest at such times and at such rates as set forth in the Agreement.
2. Schedule of Payments.
Principal and interest under this Note shall be due and payable on
December 31, 2002, or sooner as provided in the Agreement.
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 circumstances
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 compound interest by adding the
unpaid interest to principal, with such amount thereafter bearing interest at
the rate provided in this Note in addition to the rights set forth herein, in
the Agreement, and under law.
Exhibit A
1
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.
(c) The Maker hereby consents to the acceptance, release, or
substitution of security for this Note.
(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.
(f) No delay or omission on the part of the Holder in exercising any
right shall operate as a waiver thereof or of any other right.
(g) A waiver by the Holder upon any one occasion shall not be
construed as a bar or waiver of any right or remedy on any future occasion.
(h) Should any one or more of the provisions of this Note be
determined illegal or unenforceable, all other provisions shall nevertheless
remain effective.
(i) This Note cannot be changed, modified, amended, or terminated
orally.
7. Security for the Note.
This Note is secured by the Agreement, and by various other security
documents. This Note is subject to all of the terms and conditions thereof
including, but not limited to, the remedies specified therein.
8. Amendment and Restatement.
This Note amends, restates and replaces that certain Secured
Promissory Note in the principal amount of $1,500,000, dated March 1, 2002,
which note shall be returned, marked "paid by renewal" to the Maker.
9. Choice of Law and Venue.
THE VALIDITY OF THIS NOTE, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF THE MAKER AND THE HOLDER, SHALL BE DETERMINED
UNDER, GOVERNED BY, AND CONSTRUED
Exhibit A
2
IN ACCORDANCE WITH THE INTERNAL LAWS OF TEE STATE OF CALIFORNIA, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
MAKER HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH
THIS NOTE SHALL BE TRIED AND DETERMINED ONLY IN THE STATE AND FEDERAL COURTS
LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, OR, AT THE SOLE
OPTION OF THE HOLDER, IN THE STATE OF NEW YORK OR IN ANY OTHER COURT IN WHICH
THE HOLDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT
MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, THE MAKER HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO
ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION.
10. Waiver of Jury Trial.
THE MAKER, TO THE EXTENT IT MAY LEGALLY DO SO, HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION,
OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS NOTE, OR IN ANY WAY
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE DEALINGS OF THE HOLDER AND THE
MAKER WITH RESPECT TO THIS NOTE, OR THE TRANSACTIONS RELATED HERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE. THE MAKER, TO THE EXTENT IT MAY
LEGALLY DO SO, HEREBY AGREES THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF
ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT
THE HOLDER MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION 9 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF MAKER TO THE WAIVER OF ITS RIGHT TO TRIAL BY
JURY.
IN WITNESS WHEREOF, this Note has been executed and delivered on the date
first set forth above.
PORTA SYSTEMS CORP.,
a Delaware corporation
By: [ILLEGIBLE]
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Exhibit A
3
