Exhibit 10.1
[BANK OF AMERICA LOGO]
AMENDMENT NO. 5 TO LOAN AGREEMENT
This Amendment No. 5 (the "Amendment") dated as of June 28, 2002, is
between Bank of America, N.A. (the "Bank"), formerly Bank of America National
Trust and Savings Association, and Cohu, Inc. (the "Borrower").
RECITALS
A. The Bank and the Borrower entered into a certain a Business Loan
Agreement dated as of June 15, 1998 (together with any previous amendments, the
"Agreement").
B. The Bank and the Borrower desire to amend the Agreement.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this Amendment
shall have the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
2.1 In Paragraph 1.1(a) of the Agreement, the amount "Five Million
Dollars ($5,000,000)" is substituted for the amount "Ten Million
Dollars ($10,000,000)".
2.2 In Paragraph 1.2 of the Agreement, the date "July 1, 2003" is
substituted for the date "July 1, 2002".
2.3 Article 2 of the Agreement is amended to read in its entirety as
follows:
2. FEES AND EXPENSES
2.4 A new Paragraph 2.3 is added to the Agreement, which reads in
its entirety as follows:
2.3 Unused commitment fee. The Borrower agrees to pay a fee on
any difference between the Commitment and the amount of credit
it actually uses, determined by the weighted average credit
outstanding during the specified period. The fee will be
calculated at .125% per year. The calculation of credit
outstanding shall not include the undrawn amount of letters of
credit. This fee is due on September 30, 2002, and on the 10 day
of each following quarter until the expiration of the
availability period.
2.5 Paragraph 6.3 of the Agreement is deleted in its entirety.
2.6 Paragraph 6.4 of the Agreement is amended to read in its
entirety as follows:
6.4 Tangible Net Worth. To maintain on a consolidated basis
Tangible Net Worth equal to at least One Hundred Sixty Thousand
Million Dollars ($160,000,000). "Tangible Net Worth" means the
value of Borrower's total assets (including leaseholds and
leasehold improvements and reserves against assets but excluding
goodwill, patents, trademarks, trade names, organization
expense, unamortized debt discount and expense, capitalized or
deferred research and development costs, deferred marketing
expenses, and other like intangibles, and monies due from
affiliates, officers, directors, employees, shareholders,
members or managers of Borrower) less total liabilities,
including but not limited to accrued and deferred income taxes,
but excluding the non-current portion of Subordinated
Liabilities. "Subordinated Liabilities" means liabilities
subordinated to Borrower's obligations to Bank in a manner
acceptable to Bank in its sole
discretion. This amount will calculated at the end of each
fiscal quarter, using the results of that quarter.
2.7 Paragraph 6.5 of the Agreement is deleted in its entirety.
2.8 A new Paragraph 6.19 is added to the Agreement, which reads in
its entirety as follows:
6.19 Unencumbered Liquid Assets. To hold, on an unconsolidated
basis, Unencumbered Liquid Assets having an aggregate market
value of not less than Fifty Million Dollars ($50,000,0000). For
the purposes of this Agreement, "Unencumbered Liquid Assets"
shall mean the following assets owned by the Borrower (excluding
assets of any retirement plan) which (i) are not the subject of
any lien, pledge, security interest or other arrangement with
any creditor to have its claim satisfied out of the assets (or
proceeds thereof) prior to the general creditors of the
Borrower, and (ii) may be converted to cash within five (5)
days: (a) Cash or cash equivalents held in the United States;
(b) United States Treasury or governmental agency obligations
which constitute full faith and credit of the United States of
America; (c) Commercial paper rated P-1 or A1 by Xxxxx'x or S&P,
respectively; (d) Medium and long-term securities rated
investment grade by one of the rating agencies described in (c)
above; (e) Eligible Stocks ; (f) Mutual funds quoted in The Wall
Street Journal which invest primarily in the assets described in
(a) -- (e) above. For purposes of this Agreement, "Eligible
Stocks" means any common or preferred stock which (i) is not
subject to statutory or contractual restrictions on sales, (ii)
is traded on a U.S. national stock exchange or included in the
National Market tier of NASDAQ and (iii) has, as of the close of
trading on the applicable exchange (excluding after hours
trading), a per share price of at least $15.
2.9 A new Paragraph 6.20 is added to the Agreement, which reads in
its entirety as follows:
6.20 Limitation on Losses. Not to incur a net loss before taxes
and extraordinary items in excess of Twelve Million Five Hundred
Thousand Dollars ($12,500,000) in any annual accounting period.
3. Representations and Warranties. When the Borrower signs this
Amendment, the Borrower represents and warrants to the Bank that: (a) there is
no event which is, or with notice or lapse of time or both would be, a default
under the Agreement except those events, if any, that have been disclosed in
writing to the Bank or waived in writing by the Bank, (b) the representations
and warranties in the Agreement are true as of the date of this Amendment as if
made on the date of this Amendment, (c) this Amendment does not conflict with
any law, agreement, or obligation by which the Borrower is bound, and (d) this
Amendment is within the Borrower's powers, has been duly authorized, and does
not conflict with any of the Borrower's organizational papers.
4. Conditions. This Amendment will be effective when the Bank receives
the following items, in form and content acceptable to the Bank:
4.1 Certificate of good standing for the Borrower from its state of
formation.
4.2 A Corporate Resolution to Obtain Credit executed by the Borrower
in the amount of Five Million Dollars ($5,000,000).
4.3 A Form U-1 Purpose Statement executed by the Borrower.
5. Effect of Amendment. Except as provided in this Amendment, all of the
terms and conditions of the Agreement shall remain in full force and effect.
6. Counterparts. This Amendment may be executed in counterparts, each of
which when so executed shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
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7. FINAL AGREEMENT. THIS WRITTEN AMENDMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN AND AMONG THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN OR
AMONG THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE
PARTIES.
This Amendment is executed as of the date stated at the beginning of
this Amendment.
Bank of America, N.A. Cohu, Inc.
X /s/ Xxxxxxx Xxxxxxxx X /s/ Xxxx X. Xxxxx
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By: Xxxxxxx Xxxxxxxx, By: Xxxx X. Xxxxx, Vice
Senior Vice President President/Finance &
Chief Financial Officer
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