exv10w1






EXHIBIT 10.1




FIFTH AMENDMENT TO CREDIT AGREEMENT




     THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Fifth Amendment”), dated as of March
26, 2010, is entered into among ENCORE WIRE CORPORATION, a Delaware corporation (the
“Borrower”), BANK OF AMERICA, N.A. (“Bank of America”) and WELLS FARGO BANK,
NATIONAL ASSOCIATION (“Wells Fargo”), in their individual capacities as “Lenders”
(as such term is defined herein), and BANK OF AMERICA, N.A., as Administrative Agent.



BACKGROUND




     A. The Borrower, the Lenders and the Administrative Agent are parties to that certain Credit
Agreement, dated as of August 27, 2004, as amended by that certain First Amendment to Credit
Agreement, dated as of May 16, 2006, that certain Second Amendment to Credit Agreement, dated as of
August 31, 2006, that certain Third Amendment to Credit Agreement, dated as of June 29, 2007, and
that certain Fourth Amendment to Credit Agreement, dated as of August 6, 2008, and as modified by
that certain Waiver to Credit Agreement, dated as of July 21, 2008, and that certain Waiver to
Credit Agreement, dated as of February 10, 2010 (said Credit Agreement, as amended and modified,
the “Credit Agreement”). The terms defined in the Credit Agreement and not otherwise
defined herein shall be used herein as defined in the Credit Agreement.



     B. The Borrower has requested certain amendments to the Credit Agreement.



     C. The Lenders and the Administrative Agent hereby agree to amend the Credit Agreement,
subject to the terms and conditions set forth herein.



     NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set
forth, and for other good and valuable consideration, the receipt and adequacy of which are all
hereby acknowledged, the Borrower, the Lenders and the Administrative Agent covenant and agree as
follows:



     1. AMENDMENTS.



     (a) Paragraph 7.21(a)1. of the Credit Agreement is hereby amended to read as follows:




     1. Fixed Charge Ratio. Fixed Charge Ratio shall not at any time during the
periods set forth below be less than the amount set forth opposite each such period:



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	Period	 	Fixed Charge Ratio
	From and including January 1, 2010 through and
including March 31, 2010

	 	1.35 to 1.00
	 
	 	 
	From and including April 1, 2010 through and including
June 30, 2010

	 	1.40 to 1.00
	 
	 	 
	From and including July 1, 2010 through and including
September 30, 2010

	 	1.50 to 1.00
	 
	 	 
	Thereafter

	 	2.00 to 1.00






     (b) Paragraph 7.21(b)2. of the Credit Agreement is hereby amended to read as follows:




	 	2.	 	[Intentionally Omitted.]





     (c) Paragraph 7.21(b)4. of the Credit Agreement is hereby amended to read as follows:




	 	4.	 	“EBITDA” means an amount equal to the sum of the
following, determined for the preceding four (4) completed Fiscal Quarters:
(i) income before provision for income taxes plus (ii) all interest charges
paid or accrued (including any charges incurred in connection with the early
payment of the Private Placement Debt) plus (iii) depreciation and
amortization.





     (d) Paragraph 7.21(b)5. of the Credit Agreement is hereby amended to read as follows:




	 	5.	 	“Fixed Charge Ratio” means the ratio of the following,
determined for the preceding four (4) Fiscal Quarters: (a) the sum of EBITDA
less provision for income taxes less Maintenance Capital Expenditures, (b)
divided by the sum of Interest Expense plus Current Maturities of Long-Term
Indebtedness plus cash dividends paid by the Borrower to its shareholders.





     (e) Paragraph 7.21(b)7. of the Credit Agreement is hereby amended to read as follows:




	 	7.	 	“Interest Expense” means all interest charges paid or
assumed, excluding (i) capitalized interest, if any, and (ii) any charges
incurred in connection with the early payment of the Private Placement Debt.





     2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and
delivery hereof, the Borrower represents and warrants that, as of the date hereof and after giving
effect to this Fifth Amendment:



     (a) the representations and warranties contained in the Credit Agreement and the other Loan
Documents are true and correct on and as of the date hereof as made on and as of such date, except
to the extent that such representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct as of such earlier date, and except to the



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extent such representations and warranties have been supplemented pursuant to paragraph 7.12
of the Credit Agreement;




     (b) no event has occurred and is continuing which constitutes a Default or an Event of
Default;



     (c) (i) the Borrower has full power and authority to execute and deliver this Fifth Amendment,
(ii) this Fifth Amendment has been duly executed and delivered by the Borrower, and (iii) this
Fifth Amendment and the Credit Agreement, as amended hereby, constitute the legal, valid and
binding obligations of the Borrower, enforceable in accordance with their respective terms, except
as enforceability may be limited by applicable Debtor Relief Laws and by general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except
as rights to indemnity may be limited by federal or state securities laws;



     (d) neither the execution, delivery and performance of this Fifth Amendment or the Credit
Agreement, as amended hereby, nor the consummation of any transactions contemplated herein or
therein, will conflict with (i) the certificate or articles of incorporation or the applicable
constituent documents or bylaws of the Borrower or the Guarantor, (ii) any Law applicable to the
Borrower or the Guarantor or (iii) any indenture, agreement or other instrument to which the
Borrower, the Guarantor or any of their respective properties are subject; and



     (e) no authorization, approval, consent, or other action by, notice to, or filing with, any
Governmental Authority or other Person not previously obtained is required for (i) the execution,
delivery or performance by the Borrower of this Fifth Amendment or (ii) the acknowledgement by the
Guarantor of this Fifth Amendment.



     3. CONDITIONS TO EFFECTIVENESS. This Fifth Amendment shall be effective immediately
upon satisfaction or completion of the following:



     (a) the Administrative Agent shall have received counterparts of this Fifth Amendment executed
by each Lender;



     (b) the Administrative Agent shall have received counterparts of this Fifth Amendment executed
by the Borrower and acknowledged by the Guarantor;



     (c) the Administrative Agent shall have received a certified resolution of the Board of
Directors of the Borrower authorizing the execution, delivery and performance of this Fifth
Amendment; and



     (d) the Administrative Agent shall have received in immediately available funds for the
account of each Lender an amendment fee of $12,500 for each Lender.



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     4. REFERENCE TO THE CREDIT AGREEMENT.



     (a) Upon the effectiveness of this Fifth Amendment, each reference in the Credit Agreement to
“this Agreement”, “hereunder”, or words of like import shall mean and be a reference to the Credit
Agreement, as affected and amended hereby.



     (b) The Credit Agreement, as amended by the amendments referred to above, shall remain in full
force and effect and is hereby ratified and confirmed.



     5. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand all costs and
expenses of the Administrative Agent in connection with the preparation, reproduction, execution
and delivery of this Fifth Amendment and the other instruments and documents to be delivered
hereunder (including the reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent with respect thereto).



     6. GUARANTOR’S ACKNOWLEDGMENT. By signing below, the Guarantor (a) acknowledges,
consents and agrees to the execution, delivery and performance by the Borrower of this Fifth
Amendment, (b) acknowledges and agrees that its obligations in respect of its Guaranty (i) are not
released, diminished, waived, modified, impaired or affected in any manner by this Fifth Amendment
or any of the provisions contemplated herein, and (ii) includes all Obligations as assumed by the
Borrower, (c) ratifies and confirms its obligations under its Guaranty, and (d) acknowledges and
agrees that it has no claims or offsets against, or defenses or counterclaims to, its Guaranty.



     7. EXECUTION IN COUNTERPARTS. This Fifth Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which when taken together shall
constitute but one and the same instrument. For purposes of this Fifth 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.



     8. GOVERNING LAW; BINDING EFFECT. This Fifth Amendment shall be governed by and
construed in accordance with the laws of the State of Texas, provided that the Administrative Agent
and each Lender shall retain all rights arising under federal law, and shall be binding upon the
parties hereto and their respective successors and assigns.



     9. HEADINGS. Section headings in this Fifth Amendment are included herein for
convenience of reference only and shall not constitute a part of this Fifth Amendment for any other
purpose.



     10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS FIFTH AMENDMENT, AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED



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BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.








REMAINDER OF PAGE LEFT INTENTIONALLY BLANK








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     IN WITNESS WHEREOF, this Fifth Amendment is executed as of the date first set forth
above.



	 	 	 	 	 
	 	BORROWER:





ENCORE WIRE CORPORATION

 	 
	 	By:  	/s/ Frank J. Bilban
 	 
	 	 	Name:  	Frank J. Bilban 	 
	 	 	Title:  	VP & CFO 	 
	 




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	 	ADMINISTRATIVE AGENT:



BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ Alan Tapley
 	 
	 	 	Name:  	Alan Tapley 	 
	 	 	Title:  	Officer 	 
	 
	 	BANK OF AMERICA, N.A., as a Lender

 	 
	 	By:  	/s/ Allison W. Connally
 	 
	 	 	Name:  	Allison W. Connally 	 
	 	 	Title:  	Vice President 	 
	 




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	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Thomas P. Floyd
 	 
	 	 	Name:  	Thomas P. Floyd 	 
	 	 	Title:  	Vice President 	 
	 




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	ACKNOWLEDGED AND AGREED:


EWC AVIATION CORP.	 	 
	 
	 	 	 	 
	By:

	 	/s/ Frank J. Bilban
 

Name: Frank J. Bilban
	 	 
	 

	 	Title: VP & CFO	 	 







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