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EXHIBIT 10.2
FOURTH AMENDMENT TO SECOND
AMENDED AND RESTATED FINANCING AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING
AGREEMENT (the "Amendment") dated as of October 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, 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, and the Lenders 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"), by the Second
Amendment to Second Amended and Restated Financing Agreement, dated as of June
15, 1998 (the "Second Amendment") and by the Third Amendment to Second Amended
and Restated Financing Agreement, dated as of August 28, 1998 (the "Third
Amendment") (as so amended, the "Original Financing Agreement") relating to a
$65,000,000 revolving credit facility ("Facility"), pursuant to which, inter
alia, the Lenders agreed to make certain loans available to the Borrower upon
the terms and conditions contained in the Original Financing Agreement;
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. Term. 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 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
$75,000,000; provided, however, solely with respect
to Borrower's fiscal year ending in 1998, Capital
Expenditures may not exceed $35,000,000.
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3. 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.
4. Miscellaneous.
4.1 Headings. Section headings are for reference only and shall not
affect the interpretation or meanings of any provision of this Amendment.
4.2 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.
4.3 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAW.
4.4 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.
4.5 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.
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 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
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 October, 1998.
EWC LEASING CORP.
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Vice President
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