Exhibit 10.2


 


IMPORTANT NOTICE


 


THIS INSTRUMENT CONTAINS A CONFESSION OF JUDGMENT
PROVISION WHICH CONSTITUTES A WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE AS A
DEBTOR AND ALLOWS THE CREDITOR TO OBTAIN A JUDGMENT AGAINST YOU WITHOUT ANY
FURTHER NOTICE.


 


FIFTH AMENDMENT

TO REVOLVING NOTE


 


THIS FIFTH
AMENDMENT TO REVOLVING NOTE (this “Fifth Amendment”) is made as of March 1,
2010, by and among EF JOHNSON TECHNOLOGIES,
INC. (formerly known as EFJ, Inc.), a Delaware corporation, E.F. JOHNSON COMPANY, a Minnesota corporation
(successor-by-merger to Transcrypt International, Inc.), and 3e TECHNOLOGIES INTERNATIONAL, INC., a Maryland corporation
(collectively, jointly and severally, the “Borrower”) and BANK OF AMERICA, N.A., a national banking association (the “Lender”).


 


RECITALS


 


A.                                   The Borrower is obligated to the Lender
with respect to a revolving line of credit loan (the “Revolving Loan”)
evidenced by that certain Revolving Note dated as of November 15, 2002, as
amended by that certain First Amendment to Revolving Note dated as of September 13,
2004, and as further amended by that certain Second Amendment to Revolving Note
dated as of July 11, 2006, and as further amended by that certain Third
Amendment to Revolving Note dated as of March 10, 2008, and as further amended
by that certain Fourth Amendment to Revolving Note dated as of March 16,
2009, made by the Borrower payable to the Lender in the maximum principal
amount of Ten Million and 00/100 Dollars ($10,000,000.00) (as amended and in
effect, the “Revolving Note”).


 


B.                                     The Revolving Note evidences the Borrower’s
obligations to repay advances of principal made by the Lender under a Revolving
Line of Credit Loan Agreement and Security Agreement, dated as of November 15,
2002, as amended by that certain First Amendment to Revolving Line of Credit
Loan Agreement and Security Agreement dated as of September 13, 2004, and
as further amended by that certain Second Amendment to Revolving Line of Credit
Loan Agreement and Security Agreement dated as of July 11, 2006, and as
further amended by that certain Third Amendment to Revolving Line of Credit
Loan Agreement, Term Loan Agreement and Security Agreement dated as of March 6,
2007, and as further modified by that certain Fourth Amendment to Revolving
Line of Credit Loan Agreement, Term Loan Agreement and Security Agreement dated
as of March 10, 2008, and as further modified by that certain Fifth
Amendment to Revolving Line of Credit Loan Agreement, Term Loan Agreement and
Security Agreement dated as of March 16, 2009 (as amended and in effect, the
“Loan Agreement”). The Revolving Note is governed, in part, by certain
provisions of the Loan Agreement.


 

















 


C.                                     Contemporaneously with the execution and
delivery of this Fifth Amendment, the Borrower and the Lender are entering into
that certain Sixth Amendment to Revolving Line of Credit Loan Agreement, Term
Loan Agreement and Security Agreement dated as of March 1, 2010 (the “Loan
Agreement Amendment”). The Loan Agreement Amendment, among other things, further
amends the Loan Agreement (1) to provide for the waiver of certain
financial covenant defaults for one or more of the fiscal quarters of the
Borrower ending (i) March 31, 2009, (ii) June 30, 2009, (iii) October 31,
2009, and/or (iv) December 31, 2009, (2) to provide for the waiver
of certain financial covenants for the fiscal quarter of the Borrower ending March 31,
2010, (3) to reduce the maximum principal amount of the Revolving Loan to
be extended by the Lender to the Borrower from Ten Million and 00/100 Dollars
($10,000,000.00) to Three Million Seven Hundred Fifty Thousand and 00/100
Dollars ($3,750,000.00), and (4) for certain other purposes.


 


D.                                    In connection therewith, the Borrower and
the Lender desire to, among other things, amend the Revolving Note (1) to reduce
the maximum principal amount of the Revolving Loan to be extended by the Lender
to the Borrower from Ten Million and 00/100 Dollars ($10,000,000.00) to Three
Million Seven Hundred Fifty Thousand and 00/100 Dollars ($3,750,000.00), (2) to
revise the interest rate in effect under the Revolving Note, and (3) for
certain other purposes.


 


AGREEMENTS


 


NOW,
THEREFORE, in consideration of the mutual agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Borrower and the Lender hereby agree as follows:


 


1.                                       Capitalized Terms. Capitalized terms used in this Fifth
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 Fifth 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 Fifth 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 Fifth Amendment.


 


3.                                       Amendments to Revolving
Note.  Effective as of the date of the execution of
this Fifth Amendment, the Revolving Note is hereby amended as follows:


 


3.1                                 Amendment of Definition of
Borrower. The
definition of “Borrower” as set forth in the Revolving Note is hereby amended
to mean EF Johnson Technologies, Inc. (formerly known as EFJ, Inc.),
a Delaware corporation, E.F. Johnson Company, a Minnesota corporation


 


2

















 


(successor-by-merger to Transcrypt International, Inc.), and 3e
Technologies International, Inc., a Maryland corporation, jointly and
severally.


 


3.2                                 Amendment of Definition of
Principal Sum.
The definition of “Principal Sum” as set forth in the Revolving Note is hereby
decreased to, and amended to mean, Three Million Seven Hundred Fifty Thousand
and 00/100 Dollars ($3,750,000.00). To the extent that the principal balance
owing under the Revolving Note as of the date of this Fifth Amendment exceeds Three
Million Seven Hundred Fifty Thousand and 00/100 Dollars ($3,750,000.00) (the “Excess
Principal Balance”), the Borrower shall, contemporaneously with the
execution and delivery of this Fifth Amendment, deliver payment to the Lender,
in good and collected funds, in a sum equal to or exceeding the Excess
Principal Balance, to be applied towards the principal balance owing under the
Revolving Note.


 


3.3                                 Amendment to Interest
Section. Section 1
of the Revolving Note entitled “Interest”
is hereby deleted in its entirety and the following inserted in its place:


 


“1.                                 Interest. Interest on the principal balance
outstanding from time to time shall accrue at a fluctuating annual rate equal
to the LIBOR-Based Rate (as hereinafter defined).


 


“LIBOR-Based Rate”
means the interest rate equal to the LIBOR Rate (as hereinafter defined) in
effect from time to time plus five hundred (500) basis points.


 


“LIBOR Rate” means
the interest rate determined by the following formula, rounded upward to the
nearest 1/100 of one percent (provided, however, that at no time after May 31,
2010 shall the LIBOR Rate be less than two hundred (200) basis points):


 


	
  LIBOR
  Rate

  	
  =

  	
  London
  Inter-Bank Offered Rate

  	
   

  
	
   

  	
   

  	
  (1.00 - Reserve
  Percentage)

  	
   

  



 


“London Inter-Bank
Offered Rate” means the average per annum interest rate at which U.S. dollar
deposits would be offered for an “Interest Period” of one (1) month by major
banks in the London inter-bank market, as shown on the Telerate Page 3750
(or any successor page) at approximately 11:00 a.m. London time two (2) London
Banking Days before the commencement of the Interest Period. If such rate does
not appear on the Telerate Page 3750 (or any successor page), the rate for
that Interest Period will be determined by such alternate method as reasonably
selected by the Lender. A “London Banking Day” is a day on which the Lender’s
London Banking Center is open for business and dealing in offshore dollars. “Reserve
Percentage” means the total of the maximum reserve percentages for determining
the reserves to be maintained by member banks of the Federal Reserve System for
Eurocurrency Liabilities, as defined in Federal Reserve Board Regulation D,
rounded upward to the nearest 1/100 of one percent. The percentage will be
expressed as a decimal, and will include, but not be limited to, marginal,
emergency, supplemental, special, and other reserve percentages. The first day
of the Interest Period must be a day other than a Saturday, or a Sunday on
which the Lender is open for business in New York and London and dealing in
offshore dollars. The last day of the Interest Period and the actual number of
days during the Interest Period will be determined by the Lender using the
practices of the London inter-bank market. Absent manifest error, the Lender’s
certificate to the Borrower stating the LIBOR Rate for each Interest Period
shall be conclusive.


 


The rate at which
interest shall accrue under this Note may change immediately upon any change at
the commencement of each Interest Period (if the London Inter-Bank Offered Rate
has changed).


 


3

















 


If the LIBOR Rate
is discontinued or unavailable, interest on the outstanding principal balance
shall accrue at the Prime Rate (as hereafter defined) plus (a) at any time
prior to May 31, 2010, Two percent (2.0%), and (b) from and after May 31,
2010, Three and Three Quarters of One Percent (3.75%). The “Prime Rate” means
the fluctuating rate announced by the Lender from time to time, in the Lender’s
sole discretion, as the Lender’s Prime Rate. Changes in the Prime Rate will be
effective, without prior notice, as of the date any change is announced. The
Prime Rate is a reference rate only; it is not necessarily the most favorable
rate of interest that the Lender charges to any borrower or class of borrowers.


 


All interest
payable under the terms of this Note shall be calculated by applying a daily
interest rate, determined by multiplying the outstanding principal balance by
the applicable annual interest rate and dividing the resulting product by three
hundred sixty (360), to the actual number of days principal is outstanding.”


 


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 Fifth
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 Fifth 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.


 


4





















 


8.                                       Illegality or
Unenforceability. Any determination that any provision or application of this Fifth
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 Fifth Amendment.


 


9.                                       Counterparts. This Fifth
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 Fifth 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 Fifth Amendment.


 


(Signatures and Notary Acknowledgments on following pages)


 


5

















 


IN
WITNESS WHEREOF, the undersigned have duly executed this Fifth Amendment to
Revolving Note as of the day and year first hereinabove set forth, the Lender
having signed for the sole purpose of evidencing its consent to the amendments
herein contained and not for the purpose of becoming liable on the Revolving
Note as a co-maker, endorser, or guarantor.


 


	
   

  	
  EF
  JOHNSON TECHNOLOGIES, INC., a Delaware corporation
  (formerly known as EFJ, INC.)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jana Ahlfinger Bell

  	
   (SEAL)

  
	
   

  	
  Name:
  Jana Ahlfinger Bell

  
	
   

  	
  Title:
  Executive Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
  State of Texas

  	
  )

  
	
  County of Dallas

  	
  ) To Wit:

  
	
   

  	
   

  
	
  Acknowledged before me by
  Jana Ahlfinger Bell as Executive Vice President and Chief Financial Officer
  of EF Johnson Technologies, Inc. (formerly known as EFJ, Inc.), a
  Delaware corporation, this 2nd of March, 2010.

  
	
   

  	
   

  
	
   

  	
  /s/
  Amy M. Fritts

  
	
   

  	
  Notary
  Public

  
	
   

  	
   

  
	
  My
  commission expires: 11-7-2013

  	
   

  
	
  My
  registration number: 12548867-6

  	
   

  
	
   

  	
   

  
	
   

  	
  E.F.
  JOHNSON COMPANY, a Minnesota corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jana Ahlfinger Bell

  	
   (SEAL)

  
	
   

  	
  Name:
  Jana Ahlfinger Bell

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
  State of Texas

  	
  )

  
	
  County of Dallas

  	
  ) To Wit:

  
	
   

  	
   

  
	
  Acknowledged before me by
  Jana Ahlfinger Bell as Chief Financial Officer of E.F. Johnson Company, a
  Minnesota corporation, this 2nd of March, 2010.

  
	
   

  	
   

  
	
   

  	
  /s/
  Amy M. Fritts

  
	
   

  	
  Notary
  Public

  
	
   

  	
   

  
	
  My
  commission expires: 11-7-2013

  	
   

  
	
  My
  registration number: 12548867-6

  	
   

  
					



 


6

















 


	
   

  	
  3e
  TECHNOLOGIES INTERNATIONAL, INC., a Maryland corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jana Ahlfinger Bell

  	
   (SEAL)

  
	
   

  	
  Name:
  Jana Ahlfinger Bell

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
  State of Texas

  	
  )

  
	
  County of Dallas

  	
  ) To Wit:

  
	
   

  	
   

  
	
  Acknowledged before me by
  Jana Ahlfinger Bell as Chief Financial Officer of 3e Technologies
  International, Inc., a Maryland corporation, this 2nd of March, 2010.

  
	
   

  	
   

  
	
   

  	
  /s/
  Amy M. Fritts

  
	
   

  	
  Notary
  Public

  
	
   

  	
   

  
	
  My
  commission expires: 11-7-2013

  	
   

  
	
  My
  registration number: 12548867-6

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK
  OF AMERICA, N.A., a national banking association

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Fred P. Lucy, II

  	
   (SEAL)

  
	
   

  	
  Name:
  Fred P. Lucy, II

  
	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
  State of Rhode Island

  	
  )

  
	
  County of Providence

  	
  ) To Wit:

  
	
   

  	
   

  
	
  Acknowledged before me by
  Fred P. Lucy, II as Sr. Vice President of Bank of America, N.A., this
  1st day of March, 2010.

  
	
   

  	
   

  
	
   

  	
  /s/
  Jane A. Martin

  
	
   

  	
  Notary
  Public

  
	
   

  	
   

  
	
  My
  commission expires: 2/12/14

  	
   

  
	
  My
  registration number: 42760 

  	
   

  
					



 


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