exv10w3



 




Exhibit
10.3

 



 

 








SECOND AMENDMENT

TO

CREDIT AGREEMENT




Dated as of August 31, 2006




among




ENCORE WIRE LIMITED,

as the Borrower




BANK OF AMERICA, N.A.,

as Administrative Agent and a Lender,




and




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Syndication Agent and a Lender




and




The Other Lenders Party Thereto




 

 






BANK OF AMERICA, N.A.,

as Sole Lead Arranger and Sole Book Manager






 









 








SECOND AMENDMENT TO CREDIT AGREEMENT




     THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Second Amendment”), dated as of
August 31, 2006, is entered into among ENCORE WIRE LIMITED, a Texas limited partnership (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 (said Credit Agreement, as amended, 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 to, among other
things, increase the Aggregate Commitments.



     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) The definition of “Aggregate Commitments” set forth at 1.6 of the Credit Agreement
is hereby amended to read as follows:



     “Aggregate Commitments” means the Commitments of all the Lenders. As of the
Second Amendment Effective Date, the Aggregate Commitments are $200,000,000.



     (b) The definition of “Accordion Amount” set forth in Article I of the Credit
Agreement is hereby amended to read as follows:



     “Accordion Amount” means, as of any date of determination, the difference
between $200,000,000 and the Aggregate Commitments in effect on such date of determination.



     (c) The definition of “Note Purchase Agreement” set forth at 1.94 of the Credit
Agreement is hereby amended to read as follows:



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          “Note Purchase Agreements” means, collectively, (a) that certain Note Purchase
Agreement, dated as of August 1, 2004, among the Borrower, Parent and the purchasers party
thereto, in the form in effect on August 27, 2004, and (b) that certain Master Note Purchase
Agreement, dated as of September 15, 2006, among Borrower, Parent and the purchasers party
thereto, in substantially the form of the draft delivered to the Administrative Agent dated
August 21, 2006.



     (d) The definition of “Private Placement Debt” set forth at 1.103 of the Credit
Agreement is hereby amended to read as follows:




           “Private Placement Debt” means unsecured private placement indebtedness of the
Borrower in an aggregate principal amount not to exceed $150,000,000 issued pursuant to (a)
the terms and conditions set forth in the Note Purchase Agreements and (b) any other
documentation containing terms and conditions substantially similar to the Note Purchase
Agreements.



     (e) Article I of the Credit Agreement is hereby amended by adding the defined term “Second
Amendment Effective Date” thereto in proper alphabetical order to read as follows:




           “Second Amendment Effective Date” means August 31, 2006.



     (f) Clause (e) of Section 7.26 of the Credit Agreement is hereby amended to read as follows:




           (e) the Private Placement Debt, so long as there is no Default or Event of Default
immediately before and, on a pro forma basis, after the incurrence of such Indebtedness,



     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:



     (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 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 Second Amendment
and each Revolving Loan Note payable to the order of each Lender in the amount of each such
Lender’s Commitment as increased by this Second Amendment (collectively, the “Replacement
Notes”), (ii) this Second Amendment and the Replacement Notes have been duly executed and
delivered by the Borrower, and (iii) this Second Amendment, the Replacement



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Notes 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 Second Amendment, the Replacement
Notes 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 any Guarantor, (ii) any Law
applicable to the Borrower or any Guarantor or (iii) any indenture, agreement or other instrument
to which the Borrower, any 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 Second Amendment or the Replacement Notes or (ii)
the acknowledgement by each Guarantor of this Second Amendment.



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



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



     (b) the Administrative Agent shall have received an executed Replacement Note for each Lender;




     (c) the Administrative Agent shall have received counterparts of this Second Amendment
executed by the Borrower and acknowledged by each Guarantor;



     (d) 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 Second
Amendment and the Replacement Notes;



     (e) the Administrative Agent shall have received an opinion of the Borrower’s counsel, in form
and substance satisfactory to the Administrative Agent and its counsel, with respect to the matters
set forth in clauses (c), (d) and (e) of Section 2 of this Second Amendment and with
respect to such other matters as the Administrative Agent and its counsel shall reasonably request;



     (f) the Administrative Agent shall have received in immediately available funds for the
account of each Lender a fee in an amount equal to the product of (A) 0.10% and (B) the amount of
the increase of each such Lender’s Commitment pursuant to this Second Amendment; and



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     (g) the Administrative Agent shall have received, in form and substance satisfactory to the
Administrative Agent and its counsel, such other documents, certificates and instruments as the
Administrative Agent shall require.



     4. REFERENCE TO THE CREDIT AGREEMENT.



     (a) Upon the effectiveness of this Second 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 Second 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, each Guarantor (a) acknowledges,
consents and agrees to the execution, delivery and performance by the Borrower of this Second
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 Second Amendment
or any of the provisions contemplated herein, and (ii) include the increase of the Aggregate
Commitments provided for in this Second Amendment, (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 Second 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 Second 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 Second 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 Second Amendment are included herein for
convenience of reference only and shall not constitute a part of this Second Amendment for any
other purpose.



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     10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS SECOND AMENDMENT, AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED 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 Second Amendment is executed as of the date first set forth above.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	BORROWER:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	ENCORE WIRE LIMITED	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	EWC GP Corp., its general partner  
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 





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	 	 	ADMINISTRATIVE AGENT:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	Commitment: $120,000,000
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





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	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	Commitment: $80,000,000
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





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ACKNOWLEDGED AND AGREED:




EWC GP CORP.




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





EWC LP CORP.




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





EWC AVIATION CORP.




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 






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