EXHIBIT 10.27
AMENDMENT NUMBER ONE
TO
CREDIT AGREEMENT
THIS AMENDMENT NUMBER ONE TO CREDIT AGREEMENT ("Amendment"), is entered
into as of August 29th, 2006, by and between COMERICA BANK ("Bank") and
UNIVERSAL ELECTRONICS INC., a Delaware corporation ("Borrower"), in light
of the following:
A. Borrower and Bank have previously entered into that certain Credit
Agreement, dated as of September 15, 2003, as amended (the "Agreement").
B. Borrower and Bank desire to amend the Agreement as provided for and on
the conditions set forth herein.
NOW, THEREFORE, Borrower and Bank hereby amend and supplement provisions of
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 otherwise defined
herein,
2. AMENDMENTS.
(a) The definition of "Applicable Unused Revolving Commitment Fee
Percentage" in Section 1.1 of the Agreement is hereby amended to read as
follows:
"Applicable Unused Revolving Commitment Fee Percentage" means the
percentage set forth in the table below opposite the average
daily collected deposits of Borrower maintained at Bank for the
prior fiscal quarter:
AVERAGE DAILY APPLICABLE UNUSED REVOLVING
COLLECTED DEPOSITS OF COMMITMENT FEE PERCENTAGE
BORROWER MAINTAINED
AT BANK
- ------------------------ ---------------------------
Greater than 0.000%
$5,000,000
Equal to or greater than 0.125%
$2,000,000 and less
than or equal to
$5,000,000
Less than $2,000,000 0.250%
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(b) The definition of "Revolving Loans Maturity Date" in Section 1.1
of the Agreement is hereby amended to read as follows:
"Revolving Loans Maturity Date" means August 31, 2009.
(c) Section 7.10(c) of the Agreement is hereby amended to read as
follows:
(c) Notwithstanding Section 7.10(a), Borrower may redeem or
purchase on the open market, at any time from August 31, 2006
through the term of this Agreement, up to 2,000,000 shares of
its outstanding Common Stock in addition to any such shares
previously purchased.
(d) Section 7.15(a) of the Agreement is hereby amended to read as
follows:
(a) Consolidated Effective Tangible Net Worth, measured as of the
end of each fiscal quarter, at any time to be less than the sum,
increased each year on an aggregate basis, of $66,000,000 plus,
as of the end of each of Borrower's fiscal years, 25% of
Consolidated Net Income for such fiscal year.
(e) Section 10.12 of the Agreement is hereby amended to add thereto
the following new subsection (d):
(d) Judicial Reference Provision.
(a) In the event the jury trial waiver set forth above in
Section 10.12(c) is not enforceable, the parties elect to proceed
under this Judicial Reference Provision.
(b) With the exception of the items specified in clause (c),
below, any controversy, dispute or claim (each, a "Claim")
between the parties arising out of or relating to this Agreement
or any other document, instrument or agreement between the
undersigned parties (collectively in this Section 10.12(d), the
"Comerica Documents"), will be resolved by a reference proceeding
in California in accordance with the provisions of Sections 638
et seq. of the California Code of Civil Procedure ("CCP"), or
their successor sections, which shall constitute the exclusive
remedy for the resolution of any Claim, including whether the
Claim is subject to the reference proceeding. Except as otherwise
provided in the Comerica Documents, venue for the reference
proceeding will be in the state or federal court in the county or
district where the real property involved in the action, if any,
is located or in the state or federal court in the county or
district where venue is otherwise appropriate under applicable
law (the "Court").
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(c) The matters that shall not be subject to a reference are
the following: (i) nonjudicial foreclosure of any security
interests in real or personal property, (ii) exercise of
self-help remedies (including, without limitation, set-off),
(iii) appointment of a receiver and (iv) temporary, provisional
or ancillary remedies (including, without limitation, writs of
attachment, writs of possession, temporary restraining orders or
preliminary injunctions). This reference provision does not limit
the right of any party to exercise or oppose any of the rights
and remedies described in clauses (i) and (ii) or to seek or
oppose from a court of competent jurisdiction any of the items
described in clauses (iii) and (iv). The exercise of, or
opposition to, any of those items does not waive the right of any
party to a reference pursuant to this reference provision as
provided herein.
(d) The referee shall be a retired judge or justice selected
by mutual written agreement of the parties. If the parties do not
agree within ten (10) days of a written request to do so by any
party, then, upon request of any party, the referee shall be
selected by the Presiding Judge of the Court (or his or her
representative). A request for appointment of a referee may be
heard on an ex parte or expedited basis, and the parties agree
that irreparable harm would result if ex parte relief is not
granted Pursuant to CCP Section 170.6, each party shall have
one peremptory challenge to the referee selected by the Presiding
Judge of the Court (or his or her representative).
(e) The parties agree that time is of the essence in
conducting the reference proceedings. Accordingly, the referee
shall be requested, subject to change in the time periods
specified herein for good cause shown, to (i) set the matter for
a status and trial-setting conference within fifteen (15) days
after the date of selection of the referee, (ii) if practicable,
try all issues of law or fact within one hundred twenty (120)
days after the date of the conference and (iii) report a
statement of decision within twenty (20) days after the matter
has been submitted for decision.
(f) The referee will have power to expand or limit the
amount and duration of discovery. The referee may set or extend
discovery deadlines or cutoffs for good cause, including a
party's failure to provide requested discovery for any reason
whatsoever. Unless otherwise ordered based upon good cause shown,
no party shall be entitled to "priority" in conducting discovery,
depositions may be taken by either party upon seven (7) days
written notice, and all other discovery shall be responded to
within fifteen (15) days after service. All disputes relating to
discovery which cannot
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be resolved by the parties shall be submitted to the referee
whose decision shall be final and binding.
(g) Except as expressly set forth herein, the referee shall
determine the manner in which the reference proceeding is
conducted including the time and place of hearings, the order of
presentation of evidence, and all other questions that arise with
respect to the course of the reference proceeding. All
proceedings and hearings conducted before the referee, except for
trial, shall be conducted without a court reporter, except that
when any party so requests, a court reporter will be used at any
hearing conducted before the referee, and the referee will be
provided a courtesy copy of the transcript. The party making such
a request shall have the obligation to arrange for and pay the
court reporter. Subject to the referee's power to award costs to
the prevailing party, the parties will equally share the cost of
the referee and the court reporter at trial.
(h) The referee shall be required to determine all issues in
accordance with existing case law and the statutory laws of the
State of California. The rules of evidence applicable to
proceedings at law in the State of California will be applicable
to the reference proceeding. The referee shall be empowered to
enter equitable as well as legal relief, enter equitable orders
that will be binding on the parties and rule on any motion which
would be authorized in a court proceeding, including without
limitation motions for summary judgment or summary adjudication.
The referee shall issue a decision at the close of the reference
proceeding which disposes of all claims of the parties that are
the subject of the reference. Pursuant to CCP Section 644, such
decision shall be entered by the Court as a judgment or an order
in the same manner as if the action bad been tried by the Court
and any such decision will be final, binding and conclusive. The
parties reserve the right to appeal from the Final judgment or
order or from any appealable decision or order entered by the
referee. The parties reserve the right to findings of fact,
conclusions of laws, a written statement of decision, and the
right to move for a new trial or a different judgment, which new
trial, if granted, is also to be a reference proceeding under
this provision.
(i) If the enabling legislation which provides for
appointment of a referee is repealed (and no successor statute is
enacted), any dispute between the parties that would otherwise be
determined by reference procedure will be resolved and determined
by arbitration. The arbitration will be conducted by a retired
judge or justice, in accordance with the California
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Arbitration Act Section 1280 through Section 1294.2 of the CCP as
amended from time to time. The limitations with respect to
discovery set forth above shall apply to any such arbitration
proceeding.
(j) THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES,
DISPUTES AND CLAIMS RESOLVED UNDER THIS REFERENCE PROVISION WILL
BE DECIDED BY A REFEREE AND NOT BY A JURY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS
OR HER OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY, AND FOR
THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE
PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN
OR AMONG THEM ARISING OUT OF OR IN ANY WAY RELATED TO, THIS
AGREEMENT OR THE OTHER COMERICA DOCUMENTS.
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby affirms to Bank, that
all of Borrower's representations and warranties set forth in the Agreement
are true, complete and accurate in all respects as of the date hereof.
4. NO DEFAULTS. Borrower hereby affirms to Bank that, after giving effect
to this Amendment, no Event of Default has occurred and is continuing as of the
date hereof.
5. CONDITION PRECEDENT. The effectiveness of this Amendment is expressly
conditioned upon receipt by Bank of:
(a) an executed copy of this Amendment;
(b) payment to Bank of a commitment fee equal to $3,000 in
consideration of this Amendment; and
(c) payment of all of Bank's costs and expenses incurred in connection
with this Amendment.
6. COSTS AND EXPENSES. Borrower shall pay to Bank all of Bank's
out-of-pocket costs and expenses 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 fall force and
effect.
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8. CHOICE OF LAW. This Amendment shall be governed by, construed and
interpreted in accordance with the internal laws (and not the law of conflicts)
of the state of California.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their authorized representatives the day and year first above
written.
COMERICA BANK UNIVERSAL ELECTRONICS INC.,
a Delaware corporation
By: /s/ Thomas R. Kelly
--------------------
Its: Vice President By: Bryan M. Hackworth
----------------------------
Its: Chief Financial Officer
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