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EXHIBIT 10.2
REVOLVING NOTE
$35,000,000.00 Effective as of June 9, 1997
FOR VALUE RECEIVED, the undersigned, ENCORE WIRE CORPORATION, a Texas
corporation ("Borrower") hereby promises to pay to the order of NATIONSBANK OF
TEXAS, N.A., a national bank ("Lender"), at the principal office of Agent at
000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx 00000 the principal amount of THIRTY
FIVE MILLION and NO/100 DOLLARS ($35,000,000.00) or such lesser amount as may
from time to time be advanced and remain unpaid and outstanding hereunder,
together with accrued interest as provided xxxxxxxxxxx.
This promissory note is executed and delivered by Borrower pursuant to
the certain Second Amended and Restated Financing Agreement of even date
herewith among Lender, Bank of America of Texas, N.A., Borrower and EWC
Leasing Corp. (hereinafter called the "Financing Agreement") and is one of the
Revolving Notes defined therein. All terms defined in the Financing Agreement,
wherever used herein, shall have the same meaning prescribed by the Financing
Agreement.
All loans from time to time requested by Borrower hereunder are
subject to the terms and provisions of the Financing Agreement. The maximum
principal amount at any time outstanding hereunder shall not at any time exceed
an amount equal to Xxxxxx's Commitment. The unpaid principal from day to day
outstanding under this promissory note shall bear interest at the applicable
rate prescribed for the Revolving Facility as provided by the Financing
Agreement. Xxxxxx's records shall be conclusive proof of loans, payments and
interest accruals hereunder, absent proof by Borrower of error.
All unpaid principal and accrued interest under this promissory note
shall be payable as follows: (a) accrued interest on Prime Based Loans shall
be payable quarterly on the first day of each calendar quarter, and (b) accrued
interest on any LIBOR Based Loan shall be payable on the last day of the
Interest Period applicable thereto, respectively. All unpaid principal
borrowed under the Revolving Facility and all unpaid accrued interest thereon,
and all other amounts payable hereunder relative to the Revolving Facility,
shall be due and payable to Lender in full, and the Revolving Facility shall
terminate, on the last day of the Contract Term. To the extent that any
accrued interest is not paid on its due date as specified above, Lender may at
its option (but with no obligation to do so), debit the amount of such accrued
interest against any account maintained by Borrower with Lender or add such
amount to the unpaid principal due by Borrower under the Revolving Facility.
If at any time, from time to time, the aggregate unpaid principal
amount outstanding hereunder exceeds the maximum amount allowed to be
outstanding hereunder, Borrower shall make an immediate payment of principal in
an amount not less than the amount of such excess. All such amounts, if any,
payable by Borrower shall be deemed to be payable on demand, and may be offset
by Lender against any amount owing by Lender to Borrower, without prior notice
to Borrower.
This promissory note in all respects is subject to the Financing
Agreement. Lender and Agent shall have all rights and remedies as provided in
the Financing Agreement, specifically including, without limitation, the right
of acceleration and all other rights and remedies as are provided by Article IX
("Remedies") thereof.
No delay by Xxxxxx and/or Agent in the exercise of any power or right
hereunder shall operate as a waiver or impair Xxxxxx's or Agent's rights and
remedies under this promissory note or the Loan Documents. Xxxxxxxx and each
other party ever liable hereunder severally hereby expressly waives
presentment, demand, notice of intention to demand, notice of intention to
accelerate, notice of acceleration, protest, notice of protest and any other
notice of any kind, and agrees that its liability hereunder shall not be
affected by any renewals, extensions or
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modifications, from time to time, of the time or manner of payment hereof, or
by any release or modification of any security for the obligations and
indebtedness evidenced hereby.
Borrower hereby promises to pay to Lender and Agent all reasonable
fees, costs and expenses incurred by Lender or Agent, as applicable, in
enforcement and collection of any amounts under this promissory note, including
without limitation, reasonable attorneys fees.
In no contingency or event whatsoever shall the amount of interest
under this promissory note paid by Xxxxxxxx, received by Xxxxxx and/or Agent,
agreed to be paid by Xxxxxxxx, or requested or demanded to be paid by Xxxxxx or
Agent, exceed the Maximum Rate. In the event any such sums paid to Lender
and/or Agent by Xxxxxxxx would exceed the maximum amount permitted by
applicable law, Lender and/or Agent, as applicable, shall automatically apply
such excess to any unpaid principal or, if the amount of such excess exceeds
said unpaid principal, such excess shall be paid to Borrower. All sums paid,
or agreed to be paid, by Borrower hereunder which are or hereafter may be
construed to be compensation for the use, forbearance, or detention of money
shall be amortized, prorated, spread and allocated in respect of the
Obligations throughout the full Contract Term until the Obligations are paid in
full. Notwithstanding any provisions contained in the Loan Documents or
herein, neither Lender nor Agent shall ever be entitled to receive, collect or
apply as interest any amount in excess of the Maximum Rate and, in the event
Lender and/or Agent ever receives, collects, or applies any amount that
otherwise would be in excess of the Maximum Rate, such amount shall
automatically be deemed to be applied in reduction of the unpaid principal
balance of the Obligations and, if such principal balance is paid in full, any
remaining excess shall forthwith be paid to Borrower. In determining whether
or not the interest paid or payable under any specific contingency exceeds the
Maximum Rate, Borrower, Lender and/or Agent, as applicable, shall, to the
maximum extent permitted under applicable law, (i) characterize any
non-principal payment as a standby fee, commitment fee, prepayment charge,
delinquency charge or reimbursement for a third-party expense rather than as
interest, (ii) exclude voluntary prepayments and the effect thereof, and (iii)
amortize, prorate, allocate and spread in equal parts throughout the entire
period during which the indebtedness was outstanding the total amount of
interest at any time contracted for, charged or received. Nothing herein
contained shall be construed or so operate as to require Borrower to pay any
interest, fees, costs, or charges greater than is permitted by applicable law.
Subject to the foregoing, Borrower hereby agrees that the actual effective rate
of interest from time to time existing with respect to loans made by Xxxxxx to
Borrower hereunder, including all amounts agreed to by Borrower or charged or
received by Xxxxxx and/or Agent, which may be deemed to be interest under
applicable law, shall be deemed to be a rate which is agreed to and stipulated
by Borrower and/or Lender in accordance with applicable law.
This promissory note may not be changed, amended or modified except in
writing executed by Xxxxxx and Xxxxxxxx.
This promissory note is in renewal and increase of the certain
promissory note dated effective as of June 15, 1994 previously executed and
delivered by Borrower to NationsBank of Texas, N.A. and all obligations and
indebtedness previously evidenced thereby hereafter shall be governed and
payable as provided herein.
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THIS PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO
THE LAWS OF THE STATE OF TEXAS, EXCEPT AS TO PROVISIONS RELATING TO THE RATE OF
INTEREST TO BE CHARGED ON THE UNPAID PRINCIPAL HEREOF, IN WHICH CASE, TO THE
EXTENT FEDERAL LAW OTHERWISE WOULD ALLOW A HIGHER RATE OF INTEREST THAN WOULD
BE ALLOWED BY THE LAWS OF THE STATE OF TEXAS, SUCH FEDERAL LAW SHALL APPLY.
EXECUTED this 9th day of June, 1997, effective as the date specified
above.
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THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN 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 THE PARTIES.
NATIONSBANK OF TEXAS, N.A. ENCORE WIRE CORPORATION
By: By:
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Xxxx Xxxxx, Xxxxx X. Xxxxxx
Assistant Vice President Vice President-Finance
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ENCORE WIRE CORPORATION
By:
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Xxxxx X. Xxxxxx
Vice President-Finance
