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EF Johnson Technologies, Inc.
|
8-K
May 17, 6:35 AM ET
EF Johnson Technologies, Inc. 8-K
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Contents
13
1. Capitalized Terms. Capitalized terms used in this Sixth Amendment but not defined herein have the meanings ascribed to them in the Revolving Note.
2. Ratification of Revolving Note; Further Assurances. The Borrower hereby ratifies, confirms, and reaffirms all and singular the terms and conditions of the Revolving Note. The Borrower further acknowledges and agrees that (a) except as specifically amended in this Sixth Amendment, all terms and conditions of the Revolving Note shall remain in full force and effect and (b) the Borrower has no offsets or defenses to its obligations under the Revolving Note. The Borrower shall from and after the date of the execution of this Sixth Amendment, execute and deliver to the Lender whatever additional documents, instruments, and agreements that the Lender may require to give effect to the terms and conditions of this Sixth Amendment.
3. Amendments to Revolving Note. Effective as of the date of the execution of this Sixth Amendment, the Revolving Note is hereby amended as follows:
3.1 Amendment of Definition of Principal Sum. The definition of “Principal Sum” as set forth in the Revolving Note is hereby amended to mean: (a) prior to June 17, 2010, Three
Million Seven Hundred Fifty Thousand and 00/100 Dollars ($3,750,000.00); and (b) from and after June 17, 2010, Six Million and 00/100 Dollars ($6,000,000.00); subject in each case to reduction by an amount equal to the undrawn amount of that certain Standby Letter of Credit in the amount of Seven Hundred Fifty Thousand and 00/100 Dollars ($750,000.00) upon the expiration or cancellation thereof.
3.2 Amendment to Maturity Date. Section 2 of the Revolving Note entitled “Payments and Maturity” is hereby deleted in its entirety and the following inserted in its place:
4. Confession of Judgment. The Borrower hereby appoints or reappoints (as the case may be) Joseph P. Corish and Jennifer A. Brust, and each of them, as the Borrower’s true and lawful attorneys-in-fact, for the Borrower, in the Borrower’s name, place and stead, to confess judgment against the Borrower, following the occurrence of an Event of Default, in the office of the Clerk of the Circuit Court of Montgomery County, Maryland, for the outstanding principal balance owing under the Revolving Note, as amended hereby, together with interest, late payment charges, court costs, and attorneys’ fees of fifteen percent (15.0%) of the then outstanding principal balance, hereby ratifying and confirming the acts of said attorneys-in-fact as if done by the Borrower. Notwithstanding the amount confessed for attorneys’ fees, the Lender agrees that enforcement of the judgment for such attorneys’ fees so confessed shall not exceed the amount of fees and expenses actually charged by counsel for the Lender for services rendered by counsel in connection with the confession of such judgment and the collection of the sums owing by the Borrower to the Lender. The Borrower consents to immediate execution of any such confessed judgment and waives the benefit of any exemption laws. Any provisions set forth hereafter regarding arbitration of disputes between the Borrower and the Lender shall not be deemed to limit the Lender’s right to have the attorneys-in-fact named in this paragraph confess judgment against the Borrower in favor of the Lender following the occurrence of an Event of Default.
5. Arbitration; Waiver of Jury Trial. The Provisions of the Loan Agreement specifying that certain disputes between the Borrower and the Lender shall be resolved by
binding arbitration and that the Borrower and the Lender waive any present or future right that they may have to a trial by jury are incorporated by reference into the Revolving Note and shall have the same force and effect as if fully set forth in the Revolving Note.
6. Lender Consent. The Lender has executed this Sixth Amendment for the sole purpose of evidencing its consent hereto, and not for the purpose of becoming liable on the Revolving Note as a co-maker, endorser, or guarantor.
7. No Oral Agreements. This Sixth Amendment constitutes the entire agreement of the parties concerning the subject matter hereof and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten or oral agreements between the parties.
8. Illegality or Unenforceability. Any determination that any provision or application of this Sixth Amendment is invalid, illegal, or unenforceable in any respect, or in any instance, shall not affect the validity, legality, or enforceability of any such provision in any other instance, or the validity, legality, or enforceability of any other provision of this Sixth Amendment.
9. Counterparts. This Sixth Amendment may be executed in multiple identical counterparts, each of which when duly executed shall be deemed an original, and all of which shall be construed together as one agreement. This Sixth Amendment will not be binding on or constitute evidence of a contract between the parties hereto until such time as a counterpart has been executed by such party and a copy thereof is delivered to each other party to this Sixth Amendment.