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EXHIBIT 10.1
THIRD AMENDMENT TO SECOND
AMENDED AND RESTATED FINANCING AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AGREEMENT
(the "Amendment") dated as of August 28, 1998, is by and among ENCORE WIRE
CORPORATION, a Delaware corporation ("Borrower"), NATIONSBANK, N.A. (successor
by merger to NationsBank of Texas, N.A.), a national banking association, BANK
OF AMERICA, TEXAS, N.A. ("Bank of America"), 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
NATIONSBANK, N.A. (successor by merger to NationsBank of Texas, N.A.), a
national banking association, as agent for itself and the other Lenders (in such
capacity, together with its successors in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent, NationsBank and Bank of America are
parties to the Second Amended and Restated Financing Agreement, dated as of June
9, 1997, as amended by the First Amendment to Second Amended and Restated
Financing Agreement, dated as of February 20, 1998 (the "First Amendment") and
by the Second Amendment to Second Amended and Restated Financing Agreement,
dated as of June 15, 1998 (the "Second Amendment") (as so amended, the "Original
Financing Agreement") relating to a $55,000,000 revolving credit facility
("Facility"), pursuant to which, inter alia, NationsBank and Bank of America
agreed to make certain loans available to the Borrower upon the terms and
conditions contained in the Original Financing Agreement;
WHEREAS, Bank of America desires to assign its rights and obligations
under the Original Financing Agreement to Comerica Bank, and Borrower desires
that the Lenders increase the available credit under said facility to an
aggregate of $65,000,000 and make certain other modifications to the Original
Financing Agreement; and
WHEREAS, the parties hereto desire to amend the Original 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 Original Financing
Agreement and not otherwise defined herein shall have the same definitions when
used herein as set forth in the Original Financing Agreement as amended by this
Third Amendment.
2. Amendment of Article I. Article I of the Original Financing
Agreement is amended by adding the following defined term:
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1.87 "Comerica Bank" means Comerica Bank-Texas in its individual
capacity as a Lender.
3. Amendment of Section 1.19. Section 1.19 of the Original Financing
Agreement is amended by deleting Section 1.19 in its entirety and replacing it
with the following:
1.19 "Contract Term" means the effective date specified in the preamble
of this Agreement and continuing through May 31, 2001.
4. Amendment of Section 1.81. Section 1.81 of the Original Financing
Agreement is amended by deleting Section 1.81 in its entirety and replacing it
with the following:
1.81 "Required Lenders" means, at any date of determination, Lenders
having in the aggregate at least 80% (in Dollar amount) of the
aggregate amount of the outstanding Commitments (or, if such
Commitments have terminated or expired, the aggregate outstanding
principal amount of the Loans and the aggregate Letter of Credit
Liabilities).
5. Amendment of Section 1.83. Section 1.83 of the Original Financing
Agreement is amended by deleting Section 1.83, as amended by the First Amendment
and the Second Amendment, in its entirety and replacing it with the following:
1.83 "Revolving Credit Limit" means the amount of (i) Sixty-Five
Million Dollars ($65,000,000) for the period commencing on August 28,
1998 until the last day of the Contract Term.
6. Amendment of Section 7.10. Section 7.10 of the Original Financing
Agreement is amended by deleting it in its entirety and replacing it with the
following:
7.10 This Section is Intentionally Deleted.
7. Amendment of Section 7.21(a)3. Section 7.21(a)3 of the Original
Financing Agreement is amended by deleting Section 7.21(a)3 in its entirety and
replacing it with the following:
3. Capital Expenditures. Capital Expenditures shall not
exceed in any one fiscal year the amount of
$7,5000,000; provided, however, solely with respect
to Borrower's fiscal year ending in 1998, Capital
Expenditures may not exceed $25,000,000.
8. Amendment of Section 7.26. Section 7.26 of the Original Agreement is
amended by deleting the amount of "$100,000.00" in subsection (c)(ii) thereof
and replacing it with the amount of "$500,000.00."
9. Amendment of Section 7.31. Section 7.31 of the Original Financing
Agreement is amended by deleting Section 7.31 in its entirety and replacing it
with the following:
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7.31 Redemptions and Acquisition of Shares. Borrower will not make any
payment on account of the purchase, redemption or other acquisition or
retirement of any shares of capital stock, provided, that
notwithstanding the foregoing, for so long as no Event of Default shall
have occurred and be continuing, and no other event or condition which
is reasonably expected to result in a Material Adverse Effect or would
be the subject of a required notice under paragraph 7.13 is in
existence, Borrower shall not be prohibited from repurchasing shares to
be held as treasury shares, provided further that (i) the aggregate
number of such shares purchased shall not exceed 900,000 and the
aggregate purchase price paid by Borrower for all such shares shall not
exceed the maximum amount of $11,300,000.00, and (ii) no Event of
Default shall result from, or exist immediately following, any such
repurchase.
10. Assignment and Acceptance of Commitment by Bank of America.
Immediately prior to the execution and delivery of this Third Amendment, Bank of
America shall (a) assign 75% (an amount representing $15,000,000 of its
Commitment) of its rights and obligations under the Original Financing Agreement
to Comerica Bank by execution and delivery of an Assignment and Acceptance and
(b) assign 25% (an amount representing $5,000,000 of its Commitment) of its
rights and obligations under the Original Financing Agreement to NationsBank by
execution and delivery of an Assignment and Acceptance.
11. Increase of Commitment. Following the execution and delivery of
the Assignment and Acceptances described in Section 10 above and upon the
execution and delivery of this Third Amendment, the aggregate Commitment of all
Lenders is increased from $55,000,000 to $65,000,000; the amount of
NationsBank's Commitment is increased from $40,000,000 (the sum of its
$35,000,000 Commitment prior to the Assignment from Bank of America and the
$5,000,000 Assignment from Bank of America) to $50,000,000; and the amount of
Comerica Bank's Commitment is $15,000,000.
12. Costs. The Borrower shall pay all reasonable out-of-pocket costs
and expenses incurred by the Agent or any Lender 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 and the Lenders.
13. Miscellaneous.
13.1 Headings. Section headings are for reference only and shall not
affect the interpretation or meanings of any provision of this Amendment.
13.2 Effect of this Amendment. The Original 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 Original
Financing Agreement, shall be deemed to refer to the Original Financing
Agreement as amended by this Amendment.
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13.3 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAW.
13.4 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.
13.5 NO ORAL AGREEMENTS. THE Original 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.
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 CORPORATION
By: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx, Vice President
LENDERS AND AGENT:
NATIONSBANK, N.A.
Individually and as Agent
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx, Vice President
BANK OF AMERICA, TEXAS, N.A.
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, Vice President
COMERICA BANK-TEXAS
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, Vice President
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CONFIRMATION OF GUARANTY
EWC Leasing Corp. ("Guarantor"), a wholly-owned subsidiary of Encore
Wire Corporation, hereby acknowledges the matters covered by the Third Amendment
to Second Amended and Restated Financing Agreement to which this Confirmation of
Guaranty is attached and confirms that, notwithstanding such matters, the
Guaranty By Corporation dated as of June 9, 1997 issued by Guarantor to and in
favor of NationsBank of texas, N.A. (and now in favor of NationsBank, N.A. as a
result of the merger of NationsBank of Texas, N.A. with and into NationsBank,
N.A.) and the Guaranty By Corporation dated as of June 9, 1997 issued by
Guarantor to and in favor of Bank of America, Texas, N.A., assigned to Comerica
Bank, National Association pursuant to the Assignment and Acceptance described
in Section 10 above, remain in full force and effect as continuing obligations
of Guarantor, enforceable against Guarantor in accordance with their respective
terms.
In Witness Whereof, this Confirmation of Guaranty is executed and
delivered as of the 28th day of August, 1998.
EWC LEASING CORP.
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Vice President
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