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Exhibit 4.12
MODIFICATION AGREEMENT
This modification agreement is dated as of June 9, 1997, and
is among XXXX & XXXXXX, INC., a Delaware corporation (the "Borrower"), UNITED
STATES NATIONAL BANK OF OREGON now doing business as U.S. BANK ("U.S. Bank"),
CIBC INC. ("CIBC"), ABN AMRO BANK N.V. ("ABN"), BANK OF AMERICA ILLINOIS
("BofA"), and WACHOVIA BANK OF GEORGIA, N.A. ("Wachovia").
Recitals
A. U.S. Bank, CIBC, ABN, BofA, and Wachovia (individually a "Bank" and
collectively the "Banks") and the Borrower are parties to a credit
agreement dated as of May 6, 1992, as modified (the "Credit
Agreement"). All of the capitalized terms used in this modification
agreement (this "Agreement") are defined by the Credit Agreement.
B. The Borrower and the Banks desire to enter into this Agreement to
modify the clause in the Credit Agreement limiting the amount that the
Borrower can spend in the 1997 Fiscal Year on consolidated capital
expenditures and investments, to extend the Expiry Date, and to make
certain other modifications.
NOW, THEREFORE, for value, the Borrower and the Banks agree
that:
1. INCREASE IN MAXIMUM AMOUNT OF CAPITAL EXPENDITURES AND INVESTMENTS IN
1997. Section 4 of the modification agreement dated as of January 22,
1996 (the "1/22/96 Modification Agreement"), which modified the Credit
Agreement, is itself hereby modified to increase the maximum amount
that the Borrower and its Subsidiaries can invest in consolidated
capital expenditures and investments in the 1997 Fiscal Year from $25
million to $30 million. The Borrower has expressed its present
intention to use approximately $15 million for budgeted capital
expenditures and $15 million for investment purposes. No inference
should be drawn from this consent that the Banks consent to the
Borrower increasing the Borrower's investment beyond $15 million at any
later date or dates without first providing additional information and
obtaining additional consent from the Banks.
2. EXTENSION OF EXPIRY DATE. The Expiry Date of the Credit Facilities
provided under the Credit Agreement is hereby extended to December 31,
1998.
3. TAX-RELATED CHANGES IN NET WORTH. The minimum Tangible Net Worth
required for the Borrower under Section5.01(h)(i) of the Credit
Agreement will be hereby reduced by the amounts charged to
stockholders' equity as the Borrower's additional tax liability for the
1985 Xxxx Resources Partnership transaction plus related costs and
expenses when such charges to stockholders' equity occur on the
Borrower's financial statements. It will be an Event of Default if
Tangible Net Worth drops below $164 million after reflecting such
charges to stockholders' equity. After such charges are reflected on
the Financial Statements of Borrower and its Subsidiaries, minimum
Tangible Net Worth again will increase by an amount equal to 50% of the
positive net income of Borrower and its Subsidiaries in each Fiscal
Year thereafter.
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4. MISCELLANEOUS. The parties agree to issue any additional documents and
instruments reasonably necessary to effectuate the objectives of this
Agreement. The Loan Documents will continue in full force and effect as
modified by this Agreement. This Agreement may be signed in one or more
counterparts but all such counterparts will constitute but one
agreement. The Borrower will reimburse the Agent for the reasonable
out-of-pocket costs and expenses incurred by the Agent in preparing
this Agreement. This agreement replaces a modification agreement dated
as of February 14, 1997.
5. EFFECTIVE DATE. This Agreement will become effective only when the
Agent has received by facsimile the signature page signed by the
Borrower and the signature page(s) signed by all of the Banks.
If the Borrower or a Bank delivers a facsimile of its signature, such
delivery will constitute the promise of such person to deliver
sufficient copies of the manually signed signature page for
distribution to each other party to the Credit Agreement.
XXXX & XXXXXX, INC. U.S. BANK, as the Agent and a Bank
By /s/ X. Xxxxxxxx By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxx
Chief Financial Officer Vice President
CIBC INC. ABN AMRO BANK N.V.
By /s/ X. X. Xxxxxxx By /s/ Xxxx X. Xxxxxx
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Xxx X. Xxxxxxx Xxxx X. Xxxxxx
Director, CIBC Wood Gundy Group Vice President
Securities Corp., AS AGENT and Director
By /s/ Xxxxxx X. Xxxxxx
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for Xxxxx XxXxxxxx
Vice President and Director
BANK OF AMERICA ILLINOIS WACHOVIA BANK OF GEORGIA
NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
Managing Director Senior Vice President
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