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EXHIBIT A (10.1)
FIRST AMENDMENT
TO
REVOLVING LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING LOAN AND SECURITY AGREEMENT (this
"Amendment") is entered into as of September 19, 2000 between UNIVERSAL
ELECTRONICS, INC., a Delaware corporation (the "Borrower") and BANK OF AMERICA
N.A., formerly known as Bank of America National Trust and Savings Association,
a national banking association (the "Bank").
WITNESSETH:
WHEREAS, the Borrower and the Bank are parties to a Revolving Loan and
Security Agreement dated as of October 2, 1998 (the "Existing Loan Agreement"
and as amended and modified by this Amendment, the "Amended Loan Agreement");
and
WHEREAS, the Borrower and the Bank desire to amend the Existing Loan
Agreement in certain respects;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto agree as follows:
SECTION 1
DEFINED TERMS
Terms defined in the Existing Loan Agreement and not otherwise defined
herein are used herein as therein defined.
SECTION 2
AMENDMENTS TO EXISTING LOAN AGREEMENT
2.1 Section 12.1.1 of the Existing Loan Agreement is hereby restated as
follows:
"SECTION 12.1.1 Financial Statements and Reports.
(a) Annual Audited Financial Statements of Borrower. Within 90
days after each fiscal year of Borrower, a copy of the annual audited
consolidated financial statements of the Borrower and its
Subsidiaries, prepared in accordance with GAAP, which statements
shall have been prepared by an independent certified public
accounting firm acceptable to the Bank;
(b) Quarterly Financial Statements of Borrower. Within 30 days
after the end of each fiscal quarter of each fiscal year of the
Borrower (other than the last fiscal quarter of each fiscal year), a
copy of the unaudited consolidated financial statement of the
Borrower and its Subsidiaries, prepared in the
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same manner as the financial statements referred to in the preceding
subsection (a), signed by the Borrower's chief financial officer and
consisting of a statement of funds flow for the period from the
beginning of the applicable fiscal year to the close of such fiscal
quarter; and
(c) Officer's Certificate. Within 45 days after the end of each
fiscal quarter of the Borrower including the last fiscal quarter of
each fiscal year), a certificate of Borrower's chief financial
officer dated the last day of such fiscal year quarter containing a
statement that no Event of Default or Unmatured Event of Default has
occurred and is continuing, or, if there is any such event,
describing it and the steps, if any, being taken to cure it, and
continuing a computation of, and showing compliance with, each of the
financial ratios and restrictions contained in this Section 12."
2.2 Section 12.14 of the Existing Loan Agreement is hereby restated as
follows:
"SECTION 12.14. Indebtedness. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or permit to
exist, or otherwise become or be liable in respect of, any
Indebtedness other than, without duplication, the following:
(a) Indebtedness under the terms of this Agreement and the Other
Agreements;
(b) Indebtedness outstanding on October 2, 1998 and disclosed in
the financial statements referred to in Section 11.6 or in Schedule
12.14;
(c) Indebtedness existing on October 2, 1998 of a Subsidiary of
the Borrower owing to the Borrower or to another Subsidiary of the
Borrower disclosed in the financial statements referred to in Section
11.6 or in Schedule 12.14; and
(c) Indebtedness of any Subsidiary to any commercial bank or
other commercial lender in an aggregate outstanding principal amount
for all the Borrower's Subsidiaries not exceeding $500,000."
SECTION 3
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Bank that:
3.1 Authorization; No Conflict. The execution and delivery by the Borrower
of this Amendment and the performance by the Borrower of its obligations under
the Amended Loan Agreement have been duly authorized by all necessary corporate
action, do not require any filing or registration with or approval or consent of
any governmental agency or authority, do not and
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will not conflict with, result in any violation of, or constitute any default
under, any provision of the agreement pursuant to which Borrower was formed or
any agreement or other document binding upon or applicable to the Borrower or
any of its Subsidiaries (or any of their respective properties), or any material
law or governmental regulation or court decree or order applicable to the
Borrower or any of its Subsidiaries, and will not result in or require the
creation or imposition of any Lien in any of the properties of the Borrower or
any of its Subsidiaries pursuant to the provisions of any agreement binding upon
or applicable to the Borrower or any of its Subsidiaries (other than in favor of
the Bank).
3.2 Due Execution; Enforceability. This Amendment has been duly executed
and delivered by the Borrower and, together with the Amended Loan Agreement, is
a legal, valid and binding obligation of the Borrower, enforceable in
accordance with its terms subject, as to enforcement only, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of the rights of creditors generally.
3.3 Reaffirmation of Representations and Warranties. The representations
and warranties contained in Article XI of the Existing Loan Agreement are true
and correct on the date of this Amendment, except to the extent (a) that such
representations and warranties solely relate to an earlier date or (b) changed
by circumstances permitted by the Amended Loan Agreement.
SECTION 4
CONDITIONS PRECEDENT
The amendments to the Existing Loan Agreement set forth in Section 2 of
this Amendment shall become effective as of the date first above written (the
"Amendment Effective Date") upon satisfaction of all of the following
conditions precedent:
4.1 Receipt of Documents. The Bank shall have received:
(a) a copy of this Amendment, duly executed by the Borrower; and
(b) a certificate of the Secretary of the Borrower attesting that
there have been no changes since October 2, 1998 to the Borrower's By-laws
and Articles of Incorporation and that set forth on such certificate are
the names, titles and specimen signatures of all persons authorized to
execute and deliver the Credit Agreement, the Other Agreements and this
Amendment on behalf of the Borrower.
4.2 Amendment Fee. The Borrower shall have paid to the Bank, in full, a
nonrefundable amendment fee of $1,000.
4.3 Other Conditions. There shall not exist any event or condition which
is, or with notice or lapse of time or both would be, an Event of Default or an
Unmatured Event of Default under the Existing Loan Agreement.
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SECTION 5
MISCELLANEOUS
5.1 Warranties and Absence of Defaults. In order to induce the Bank to
enter into this Amendment, the Borrower hereby warrants to the Bank, as of the
date of the actual execution of this Amendment by Borrower, that except as
disclosed to the Bank and consented to by the Bank (a) no event or condition
exists which is, or with notice or lapse of time or both would be, an Event of
Default or an Unmatured Event of Default under the Existing Loan Agreement and
(b) the representations and warranties in Section 3 of this Amendment are true
and correct.
5.2 Documents Remain in Effect. Except as amended and modified by this
Amendment, the Existing Loan Agreement and the Other Agreements remain in full
force and effect and the Borrower hereby ratifies, adopts and confirms its
representations, warranties, agreements and covenants contained in, and
obligations and liabilities under, the Existing Loan Agreement and the Other
Agreements.
5.3 Reference to Loan Agreement. On and after the Amendment Effective
Date, each reference in the Amended Loan Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import, and each reference to
the "Loan Agreement" in any note and in any other agreements, documents or
other instruments executed and delivered pursuant to the Amended Loan
Agreement, shall mean and be a reference to the Amended Loan Agreement.
5.4 Headings. Headings used in this Amendment are for convenience of
reference only, and shall not affect the construction of this Amendment.
5.5 Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered, shall be deemed to be
an original, but all such counterparts shall together constitute but one and
the same Amendment.
5.6 Expenses. Borrower agrees to pay all reasonable costs and expenses of
the Bank (including reasonable fees, charges and disbursements of the Bank's
attorneys) in connection with the preparation, negotiation, execution and
delivery of this Amendment and all other instruments or documents provided for
herein or delivered or to be delivered hereunder or in connection herewith. In
addition, Borrower agrees to pay, and save the Bank harmless from all liability
for, any stamp or other taxes which may be payable in connection with the
execution or delivery of this Amendment, the borrowings under the Amended Loan
Agreement, and the execution and delivery of any instruments or documents
provided for herein or delivered or to be delivered hereunder or in connection
herewith. All obligations provided in this Section 5.6 shall survive any
termination of this Amendment or the Amended Loan Agreement.
5.7 Governing Law. This Amendment shall be a contract made under and
governed by the internal laws of the State of Illinois. Wherever possible each
provision of this Amendment shall be interpreted in such manner as to be
effective and valid under applicable laws, but if any provision of this
Amendment shall be prohibited by or invalid under such laws, such provisions
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Amendment.
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5.8 Successors. This Amendment shall be binding upon Borrower and
the Bank and their respective successors and assigns, and shall inure to the
benefit of Borrower and the Bank and the successors and assigns of the Bank.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized and delivered
as of the date first above written.
UNIVERSAL ELECTRONICS, INC.
By: /s/ MARK BELZOWSKI
------------------------------------
Mark Belzowski
Title: Chief Financial Officer
---------------------------------
BANK OF AMERICA, N.A. (formerly known as
Bank of America National Trust and
Savings Association
By: /s/ DENISE PARDUE
------------------------------------
Denise Pardue
Title: Vice President
---------------------------------
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SECRETARY'S CERTIFICATE
UNIVERSAL ELECTRONICS, INC.
The undersigned hereby certifies that Richard A. Firehammer, Jr. is the
duly elected, qualified and acting Secretary of Universal Electronics, Inc., a
Delaware corporation ("Company"), and pursuant to that certain First Amendment
dated September 19, 2000 (the "Amendment") to Revolving Loan and Security
Agreement dated as of October 2, 1998 (the "Credit Agreement") between the
Company and Bank of America, N.A. (the "Bank"), hereby further certifies to the
Bank as follows:
(a) There has been no amendment, modification or other
change to the By-laws of the Company from that in effect on October 2,
1998 and heretofore delivered by the Company to the Bank, except as set
forth in Exhibit A;
(b) There has been no amendment, modification or other
change to the Articles of Incorporation of the Company from that in
effect on October 2, 1998 and heretofore delivered by the Company to the
Bank, except as set forth in such Exhibit B;
(c) The following are the names and titles of duly elected,
qualified and acting officers of the Company. Each such person holds the
office set forth below opposite his name, and the respective signatures
appearing below opposite the names of any officers who have executed or
are executing the Credit Agreement, the Amendment or the Other
Agreements (as defined in the Credit Agreement) are genuine signatures
of such persons.
<TABLE>
<CAPTION>
Name Title Signature Sample
---- ----- ----------------
<S> <C> <C>
Camille Jayne Chairman and Chief /s/ CAMILLE JAYNE
Executive Officer ------------------------------
Paul D. Arling President and Chief /s/ PAUL D. ARLING
Operating Officer ------------------------------
Richard A. Firehammer, Jr. Senior Vice President and /s/ RICHARD A. FIREHAMMER, JR.
Secretary ------------------------------
Mark Belzowski Chief Financial Officer /s/ MARK BELZOWSKI
------------------------------
</TABLE>
(d) Each officer whose signature appears above is or has
been duly authorized and empowered by the Company to execute the Credit
Agreement, the Amendment and the Other Agreements, to request and
confirm Loans and Letters of Credit and to execute
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and deliver to the Bank all other instruments, documents and certificates
as from time to time may be necessary or desirable to effect or confirm any
matter under the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Secretary's
Certificate the 19 day of September, 2000.
UNIVERSAL ELECTRONICS, INC.
By: /s/ RICHARD A. FIREHAMMER, JR.
-------------------------------------
Richard A. Firehammer, Jr., Secretary
The undersigned hereby certifies that he is the duly elected, qualified
and acting CFO of the Company, and hereby further certifies that Richard A.
Firehammer, Jr. is the duly elected, qualified and acting Secretary of the
Company and that the above signature is his genuine signature.
UNIVERSAL ELECTRONICS, INC.
By: /s/ MARK BELZOWSKI
-------------------------------------
CFO
-------------------------------------
Title
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EXHIBIT A
[Attach amendments since October 2, 1998 to By-laws; if none, so indicate]
None
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EXHIBIT B
[Attach amendments since October 2, 1998 to Articles of Incorporation; if
none, so indicate]
Certificate of Amendment to Restated Certificate of Incorporation -- filed
July 26, 2000 -- 2 Pages Attached
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STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "UNIVERSAL ELECTRONICS INC.", FILED IN THIS OFFICE ON THE TWENTY-SIXTH DAY
OF JULY, A.D. 2000, AT 12:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
2108379 8100 AUTHENTICATION: 0582502
001377448 DATE: 07-26-00
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CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION
OF
UNIVERSAL ELECTRONICS INC.
Pursuant to Section 242 of the
Delaware General Corporation Law
The undersigned, Paul D. Arling and Richard A. Firehammer, Jr., President and
Secretary, respectively, of Universal Electronics Inc., a Delaware corporation
(the "Corporation"), hereby certify as follows:
1. The name of the Corporation is Universal Electronics Inc.
2. The Board of Directors of the Corporation at a meeting held February 1,
2000, adopted the following resolution proposing and declaring advisable
the following amendment to the Restated Certificate of Incorporation of
the Corporation and directing that the amendment should be considered at
the next annual meeting of the stockholders:
RESOLVED, that Article FOURTH, Part I of the Corporation's Restated
Certificate of Incorporation, as amended, be amended to read in its
entirety as follows:
Part I. Aggregate Number of Shares. The aggregate number of shares of
stock which the Corporation has authority to issue is 55,000,000 shares,
consisting of:
1. 5,000,000 shares of Preferred Stock, par value $.01 per share
(the "Preferred Stock"); and
2. 50,000,000 shares of Common Stock, par value $.01 per share (the
"Common Stock").
3. At the annual meeting of stockholders held June 21, 2000, the foregoing
amendment was duly adopted in accordance with Section 242 of the Delaware
General Corporation Law.
IN WITNESS WHEREOF, Universal Electronics Inc. has caused this Certificate of
Amendment to be signed by Paul D. Arling, its President, and attested by
Richard A. Firehammer, Jr., its Secretary, this 25th day of July, 2000.
UNIVERSAL ELECTRONICS INC.
By: /s/ PAUL D. ARLING
----------------------------
Paul D. Arling, President
ATTEST:
/s/ RICHARD A. FIREHAMMER, JR.
-------------------------------------
Richard A. Firehammer, Jr., Secretary
