exv10w5



 






Exhibit 10.5




FOURTH AMENDMENT TO FINANCING AGREEMENT




     THIS FOURTH AMENDMENT TO FINANCING AGREEMENT (the “Fourth Amendment”)
dated as of November 5, 2003, is by and among ENCORE WIRE LIMITED, a Texas
limited partnership (“Borrower”), BANK OF AMERICA, N.A., a national banking
association, and COMERICA BANK, (“Comerica Bank”), in their individual
capacities as “Lenders” (as such term is defined herein), and BANK OF AMERICA,
N.A., a national banking association, as agent for itself and 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, as amended by that certain
First Amendment to Financing Agreement, dated as of June 27, 2000, that certain
Second Amendment to Financing Statement, dated as of June 28, 2002, and that
certain Third Amendment to Financing Statement, dated as of March 31, 2003
(said Financing Agreement, as amended, the “Financing Agreement”), pursuant to
which 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 to make certain changes to the terms therein upon the terms
and conditions set forth below;



     NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Borrower, the Lenders, and the Agent agree
as follows:



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.

Amendment of Section 7.26. Section 7.26 is amended and restated in its

entirety to read as follows:





               7.26 Limitation on Indebtedness. Borrower will not be
obligated, directly or indirectly, for borrowed money or otherwise
under any promissory note, bond, indenture or similar instrument,
other than (a) in favor of Agent and the Lenders hereunder, (b)
trade indebtedness incurred in the normal and ordinary course of
Borrower’s business and not more than ninety (90) days past due,
(c)(i) indebtedness of Borrower under capitalized leases and (ii)
purchase money indebtedness in connection with the purchase of
equipment, if the payments required in respect of such capitalized
leases and purchase money indebtedness do not exceed $2,100,000.00
in the aggregate during any 12-month period, (d) loans from
Borrower to any of Parent, EWC LP or EWC GP, the proceeds of which
shall be used solely for reasonable operating expenses of Parent,
EWC LP or EWC GP incurred in the ordinary course of business,
provided, however, that the aggregate principal amount of such
loans from Borrower to Parent, EWC LP or EWC GP shall at no time
during any fiscal year exceed an amount equal to the difference
between $2,000,000 and the dividends permitted and actually paid
during such fiscal year under paragraph 7.30(b) and (e)
indebtedness of Borrower to Bank of America not to exceed
$10,000,000 in aggregate principal amount and for a term not to
exceed March 31, 2004.



Conditions Precedent. This Fourth Amendment shall be effective November 6,

2003, provided that on or before November 6, 2003, the Agent shall have

received the following:

executed signature pages from the Borrower, the Agent and the Lenders; and

a confirmation by each of the Guarantors of such Guarantor’s obligations under

the Guaranties and the other Loan Documents executed by such
Guarantor.


Further Assurances. The Borrower shall execute and deliver such further

agreements, documents, instruments, and certificates in form and substance

satisfactory to the Agent, as the Agent or any Lender may deem necessary or

appropriate in connection with this Fourth Amendment.


No Waiver. Nothing contained in this Fourth Amendment shall be construed as a

waiver by Agent or the Lenders of any covenants or provisions of the Financing

Agreement, the other Loan Documents, this Fourth Amendment, or of any other

contract or instrument between Borrower, Agent and/or Lenders, and the failure

of Agent or Lenders at any time or times hereafter to require strict

performance





 









 








 by the Borrower of any provisions 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, and the other Loan Documents,

this Fourth Amendment and any other contract or instrument between the

Borrower, Agent and/or the Lenders.


Representations and Warranties. The Borrower and each Guarantor by its

execution below represent and warrant to the Lenders and the Agent that (a) the

execution, delivery and performance of this Fourth 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 Borrower and

Guarantors and will not violate the Articles of Incorporation, Bylaws or other

governing documents of the Borrower or any Guarantor; (b) the representations

and warranties contained in the Financing Agreement and other Loan Documents

are true and correct on the date hereof both before and after giving effect to

this Fourth Amendment; (c) there exists no Event of Default or Default under

the Financing Agreement both before and after giving effect to this Fourth

Amendment; (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; (e) the Financing

Agreement, as amended hereby, and the other Loan Documents remain in full force

and effect; and (f) no notice to, or consent of, any Person is required under

the terms of any agreement of the Borrower or any Guarantor in connection with

the execution of this Fourth Amendment.


Ratification. The terms and provisions set forth in this Fourth Amendment

shall modify and supersede all inconsistent terms and provisions in the

Financing Agreement and the other Loan Documents, and, except as expressly

modified and superseded by this Fourth 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.


Counterparts. This Fourth Amendment and the other Loan Documents may be

executed in any number of counterparts, all of which taken together shall

constitute one and the same instrument. In making proof of any such agreement,

it shall not be necessary to produce or account for any counterpart other than

one signed by the party against which enforcement is sought.. For purposes of

this Fourth Amendment, a counterpart hereof (or signature page thereto) signed

and transmitted by any Person party hereto to the Administrative Agent (or its

counsel) by facsimile machine, telecopier or electronic mail is to be treated

as an original. The signature of such Person thereon, for purposes hereof, is

to be considered as an original signature, and the counterpart (or signature

page thereto) so transmitted is to be considered to have the same binding

effect as an original signature on an original document.




ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE

FINAL 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 AGREEMENTS AMONG THE PARTIES, AND EACH OF THE BORROWER, ITS

SUBSIDIARIES, THE AGENT, AND EACH LENDER SPECIFICALLY WAIVES, TO THE MAXIMUM

EXTENT NOT PROHIBITED BY LAW, ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM THAT

THERE EXISTS AN ORAL AGREEMENT AMONG ANY OF THE PARTIES HERETO.



GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN

ACCORDANCE WITH, THE LAW OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAW.



WAIVER OF TRIAL BY JURY. THE PARTIES HERETO AGREE THAT NO PARTY HERETO SHALL

REQUEST A TRIAL BY JURY IN THE EVENT OF LITIGATION BETWEEN OR AMONG THEM

CONCERNING THIS FOURTH AMENDMENT OR ANY OTHER LOAN DOCUMENTS OR ANY CLAIMS OR

TRANSACTIONS IN CONNECTION THEREWITH, IN EITHER A STATE OR FEDERAL COURT, THE

RIGHT TO TRIAL BY JURY BEING EXPRESSLY WAIVED BY ALL PARTIES HERETO. THE

AGENT, EACH LENDER AND THE BORROWER ACKNOWLEDGES THAT SUCH WAIVER IS MADE WITH

FULL KNOWLEDGE AND UNDERSTANDING OF THE NATURE OF THE RIGHTS AND BENEFITS

WAIVED HEREBY, AND WITH THE BENEFIT OF ADVICE OF COUNSEL OF ITS CHOOSING.



 









 





     IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to be
executed by their respective duly authorized officers as of the date first
written above.



BORROWER:



ENCORE WIRE LIMITED




By: EWC GP Corp., its general partner




	 	 	 
	By:

	 	/s/ Daniel L. Jones
	

	 	
 
	

	 	Daniel L. Jones, President







LENDERS AND AGENT:




BANK OF AMERICA,
N.A.,

as Agent




	 	 	 
	By:

	 	/s/ David A. Johanson
	

	 	
 
	

	 	David A. Johanson
	

	 	Vice President







BANK OF AMERICA,
N.A.,

as a Lender




	 	 	 
	By:

	 	/s/ Steven Mackenzie
	

	 	
 
	

	 	Steven Mackenzie
	

	 	Vice President







COMERICA BANK,

as a Lender




	 	 	 
	By:

	 	/s/ Eric Angonia
	

	 	
 
	

	 	Eric Angonia
	

	 	Assistant Vice President







 









 






CONFIRMATION OF GUARANTY




     Each of the undersigned Guarantors hereby acknowledges the matters covered
by the Fourth Amendment to Financing Agreement to which this Confirmation of
Guaranty 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 obligations 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 5th day of November, 2003.



	 	 	 	 	 
	 	 	EWC GP CORP.
	 
	 	 	 	 
	

	 	By:
	 	/s/ Daniel L. Jones
	

	 	 	 	

	

	 	 	 	Daniel L. Jones, President
	 
	 	 	 	 
	 	 	EWC AVIATION, INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/ Daniel L. Jones
	

	 	 	 	

	

	 	 	 	Daniel L. Jones, President
	 
	 	 	 	 
	 	 	ENCORE WIRE CORPORATION
	 
	 	 	 	 
	

	 	By:
	 	/s/ Daniel L. Jones
	

	 	 	 	

	

	 	 	 	Daniel L. Jones, President
	 
	 	 	 	 
	 	 	EWC LP CORP.
	 
	 	 	 	 
	

	 	By:
	 	/s/ Richard F. Klumpp
	

	 	 	 	

	

	 	 	 	Richard F. Klumpp, Vice President