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EXHIBIT 10.1
FIRST AMENDMENT TO
FINANCING AGREEMENT
THIS FIRST AMENDMENT TO FINANCING AGREEMENT (the "Amendment") dated as
of June 27, 2000, is by and among ENCORE WIRE LIMITED, a Texas limited
partnership ("Borrower"), BANK OF AMERICA, NATIONAL ASSOCIATION, a national
banking association, and COMERICA BANK-TEXAS (Comerica Bank"), a state banking
association, in their individual capacities as "Lenders" (as such term is
defined herein), and BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking
association, as agent for itself and the other Lenders (in such capacity,
together with its successors in such capacity, the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Agent, and the Lenders are parties to the
Financing Agreement, dated as of August 31, 1999, pursuant to which, inter alia,
the Lenders agreed to make certain loans available to the Borrower upon the
terms and conditions contained in the Financing Agreement;
WHEREAS, the parties to the Financing Agreement desire to amend the
Financing Agreement in accordance with the terms and provisions of this
Amendment;
NOW, THEREFORE, for and in consideration of these premises and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Agent and the Lenders hereby agree as follows:
1. Terms. All capitalized terms defined in the Financing Agreement and
not otherwise defined herein shall have the same definitions when used herein as
set forth in the Financing Agreement as amended by this Amendment.
2. Amendment of Paragraph 1.21. Paragraph 1.21 in ARTICLE I of the
Financing Agreement is amended and restated in its entirety to read as follows:
1.21 "Contract Term" means the effective date specified in the preamble
of this Agreement and continuing through May 31, 2003.
3. Conditions to Amendment. As a condition to the effectiveness of
their respective agreements contained herein, Agent and the Lenders require that
on or before the execution and delivery of this Amendment, Borrower shall have
delivered to Agent (a) such certificates of existence, good standing,
qualification, certified resolutions of Boards of Directors and certified copies
of articles of incorporation and partnership certificates with respect to
Borrower, EWC GP, EWC LP, Aviation and Parent as Agent may reasonably request,
(b) a reaffirmation by each of the Guarantors of such Guarantor's obligations
under the Guaranties and the other Loan Documents executed by such Guarantor,
(c) a renewal fee in the amount of $37,500 to be divided among the Lenders in
accordance with their respective Commitment Percentages, and (d) such other
certificates, documents and agreements as Agent and the Lenders may reasonably
request, each in form and substance satisfactory to Agent and the Lenders.
4. Costs. The Borrower shall pay all reasonable out-of-pocket costs and
expenses incurred by the Agent in connection with the negotiation, preparation,
execution and consummation of this Amendment and the transactions contemplated
by this Amendment, including, without limitation, the reasonable fees and
expenses of counsel to the Agent.
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5. No Waiver. Nothing contained in this Amendment shall be construed as
a waiver by Agent or the Lenders of any covenant or provision of the Financing
Agreement, the other Loan Documents, this Amendment, or of any other contract or
instrument between Borrower, Agent and/or the Lenders, and the failure of Agent
or the Lenders at any time or times hereafter to require strict performance by
Borrower of any provision thereof shall not waive, affect or diminish any right
of Agent or the Lenders to thereafter demand strict compliance therewith. Agent
and the Lenders hereby reserve all rights granted under the Financing Agreement,
the other Loan Documents, this Amendment and any other contract or instrument
between the Borrower, Agent and/or the Lenders.
6. Ratifications, Representations and Warranties
6.1 Ratifications. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Financing Agreement and the other Loan Documents, and, except as expressly
modified and superseded by this Amendment, the terms and provisions of the
Financing Agreement and the other Loan Documents are ratified and confirmed and
shall continue in full force and effect. The Borrower, Agent and the Lenders
agree that the Financing Agreement and the other Loan Documents, as amended
hereby, shall continue to be legal, valid, binding and enforceable in accordance
with their respective terms.
6.2 Representations and Warranties. Borrower and each Guarantor by its
execution below, represent and warrant to Agent and the Lenders that (a) the
execution, delivery and performance of this Amendment and any and all other Loan
Documents executed and/or delivered in connection herewith have been authorized
by all requisite corporate action on the part of the Borrowers and Guarantors
and will not violate the Articles of Incorporation, Bylaws or other governing
documents of Borrower or any Guarantor; (b) the representations and warranties
contained in the Financing Agreement, as amended hereby, and other Loan
Documents are true and correct on and as of the date hereof as though made on
and as of such date; (c) no Default under the Financing Agreement, as amended
hereby, has occurred and is continuing; (d) each of Borrower and each Guarantor
is in full compliance with all covenants and agreements applicable to it
contained in the Financing Agreement and the other Loan Documents, as amended
hereby; and (e) none of the Borrower and Guarantors have amended or rescinded or
otherwise modified its resolutions attached to the Corporate Certificate
delivered by such company to Agent on August 31, 1999, in connection with the
closing of the Financing Agreement.
7. Miscellaneous.
7.1 Headings. Section headings are for reference only and shall not
affect the interpretation or meanings of any provision of this Amendment.
7.2 Effect of this Amendment. The Financing Agreement, as amended by
this Amendment, shall remain in full force and effect except that any reference
therein, or in any other Loan Document referring to the Financing Agreement,
shall be deemed to refer to the Financing Agreement as amended by this
Amendment.
7.3 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAW.
7.4 Counterparts. This Amendment may be executed by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original but all such counterparts shall constitute but one and the
same Amendment.
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7.5 NO ORAL AGREEMENTS. THE FINANCING AGREEMENT, AS AMENDED BY THIS
AMENDMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS, REPRESENTS THE ENTIRE
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE PARTIES.
REST OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized officers as of the date first above
written.
BORROWER:
ENCORE WIRE LIMITED
By: EWC GP Corp., its general partner
By:
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Xxxxx Xxxxxx, Vice President
LENDERS AND AGENT:
BANK OF AMERICA,
NATIONAL ASSOCIATION,
Individually and as Agent
By:
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Xxxxxx X. Xxxxxxxx, Senior Vice President
COMERICA BANK-TEXAS
By:
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Xxxxxxx X. Xxxxxx, Senior Vice President
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CONFIRMATION OF GUARANTY
Each of the undersigned Guarantors hereby acknowledges the matters
covered by the First Amendment to Financing Agreement to which this Confirmation
of Guaranties is attached and confirms that, notwithstanding such matters, the
Guaranty and other Loan Documents executed by such Guarantor, remain in full
force and effect as the continuing obligation of such Guarantor, enforceable
against such Guarantor in accordance with their respective terms.
IN WITNESS WHEREOF, this Confirmation of Guaranty is executed and
delivered as of the ____ day of June, 2000.
EWC GP CORP.
By:
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Xxxxx X. Xxxxxx, Vice President
EWC LP CORP.
By:
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Xxxxxxx X. Xxxxxx, Vice President
EWC AVIATION, INC.
By:
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Xxxxx X. Xxxxxx, Vice President
ENCORE WIRE CORPORATION
By:
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Xxxxx X. Xxxxxx, Vice President
