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EXHIBIT 10.33
FINAL DRAFT
CONSENT AND FIRST AMENDMENT TO
AQUA-CHEM, INC.
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This CONSENT AND FIRST AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT ("First Amendment") is made this 27th day of June, 2000 (but with
retroactive effect to March 31, 2000) by and among Aqua-Chem, Inc. ("Company"),
Comerica Bank and the other banks signatory hereto (each individually, a "Bank"
and collectively, the "Banks") and Comerica Bank, as structuring, documentation
and administrative agent for the Banks (in such capacity, "Agent").
RECITALS
A. Company, Agent and the Banks entered into that certain Second
Amended and Restated Revolving Credit Agreement dated as of June 23, 1998 (the
"Credit Agreement") under which the Banks extended (or committed to extend)
credit to the Company, as set forth therein.
B. The Company has requested that Agent and the Banks (i) consent to
the sale of CB-Kramer Sales and Service, Inc., ("CB-Kramer") (ii) consent to the
winding down of the Seawater & Industrial Business Unit of the Company's Water
Technologies Division ("S&I") (iii) amend the definition of Consolidated EBITDA
related to S&I and (iv) make certain other amendments to the Credit Agreement.
The Agent and the Banks are willing to do so but only on the terms and
conditions set forth in this First Amendment.
NOW, THEREFORE, Company, Agent and the Banks agree:
1. The Company has requested that the Banks consent to the sale by the
Company of all of the stock of CB-Kramer or the sale of all or substantially all
of the operating assets of CB-Kramer (together, the "CB-Kramer Sale"). The Agent
and the Banks hereby consent to the CB-Kramer Sale provided, however, that the
total consideration for such sale is no less than a positive amount equal to the
sum of (i) the net book value of the assets of CB-Kramer Sale plus (ii)
$500,000, and that such sale price shall never require a payment by the Company
or any of its Subsidiaries except in connection with Company's breach of or
compliance with reasonable and customary representations, warranties and
indemnification provisions. The Banks further consent
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to the Agent's release of Collateral comprising stock and assets of CB-Kramer
concurrently with the closing of the CB-Kramer Sale on the terms consented to
herein.
2. The Company has requested that the Banks consent to the winding down
of S&I as previously disclosed to the Banks in a letter dated May 26, 2000 from
the Company to the Agent (the "S & I Wind Down"). The Agent and the Banks hereby
consent to the S&I Wind Down, including without limitation, the sale or other
disposition of assets of S&I. The Banks further consent to the Agent's release
of Collateral comprising assets of S&I concurrently with the sale or disposition
of such assets on the terms consented to herein.
3. Section 1 of the Credit Agreement is hereby amended as follows:
(a) Clause (v) of the definition of "Consolidated EBITDA" is hereby
amended and restated as follows:
(v) losses (or less gains) from Asset Dispositions or other
non-cash items included in the determination of net income
(excluding sales, expenses or losses related to current
assets), all restructuring charges related to the closing of
the Company's Greenville, Mississippi manufacturing facility
and the operating losses, closure costs and asset impairment
costs of the Seawater & Industrial Business Unit of its Water
Technologies Division.
(b) Section 1 of the Credit Agreement is hereby amended to insert the
following new definitions in appropriate alphabetical order:
"Account(s)" shall mean any account or account receivable as defined under the
UCC, including without limitation, with respect to any Person, any right of such
Person to payment for goods sold or leased or for services rendered.
"Account Debtor" shall mean the party who is obligated on or under any Account.
"Borrowing Base" shall mean, as of any date of determination, (A) the sum of (a)
80% of Eligible Accounts plus (b) 50% of Eligible Inventory plus 50% of the
forced sale value of the machinery and equipment of Company and the Borrower
Base Guarantors as demonstrated by an appraisal acceptable to the Banks;
provided however, that the Borrowing Base shall be determined on the basis of
the most current Borrowing Base Certificate required to be submitted by the
Company.
"Borrowing Base Activation Period" shall mean a period beginning on a required
date of delivery of the financial statements under Section 8.1 (a) and 8.1 (b)
hereunder, when either (i) such financial statements show a Consolidated EBITDA
for the four fiscal quarters ending on the date of such financial statements
that is less than the Required Borrowing Base Consolidated EBITDA
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for that date or (ii) the Company has failed timely to deliver such financial
statements and ending on the date of Company's subsequent delivery of financial
statements under Section 8.1 (a) and 8.1 (b) hereunder, which show a
Consolidated EBITDA for the four fiscal quarters ending on such date of delivery
that is equal to or greater than the Required Borrowing Base Consolidated EBITDA
for that four-quarter period.
"Borrowing Base Certificate" shall mean a borrowing base certificate, in form
acceptable to Agent, with appropriate insertions and executed by the chief
financial officer of the Company.
"Borrowing Base Guarantor" shall mean any Domestic Significant Subsidiary of the
Company which is obligated as a Guarantor under the Guaranty, and as a debtor
under the Security Agreement and which has executed and delivered a Mortgage (if
required under the terms of this Agreement).
"Eligible Account(s)" shall mean an Account which has been included in a
Borrowing Base Certificate to determine the Borrowing Base, and as to which
Account the following is true and accurate as of the time it was utilized to
determine the Borrowing Base:
(a) such Account arose in the ordinary course of the business
of Company or of any Borrowing Base Guarantor out of either (i) a bona
fide sale of Inventory which is finished goods by Company, and in such
case such Inventory has in fact been (or will, within thirty (30) days
of invoice, be) shipped to the appropriate Account Debtor or the sale
has otherwise been consummated in accordance with such order, or (ii)
services performed by Company or any Borrowing Base Guarantor under an
enforceable contract, and in such case such services have in fact been
performed for the appropriate Account Debtor in accordance with such
contract;
(b) such Account represents a legally valid and enforceable
claim which is due and owing to Company or of any Borrowing Base
Guarantor by such Account Debtor and for such amount as is represented
by Company to Agent in the applicable Borrowing Base Certificate;
(c) it is evidenced by an invoice dated no earlier than thirty
(30) days prior to, and no later than five (5) Business Days after the
date of shipment of the related Inventory or the performance of the
related services, giving rise to such Account and not more than ninety
(90) days have passed since the invoice date corresponding to such
Account;
(d) to the Company's knowledge, the unpaid balance of such
Account as represented by Company to Agent in the applicable Borrowing
Base Certificate is not subject to any defense, counterclaim, setoff,
contra account, credit, allowance or adjustment by the Account Debtor
because of returned, inferior or damaged Inventory or
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services, or for any other reason, except for customary discounts
allowed by Company or any Borrowing Base Guarantor in the ordinary
course of business for prompt payment, and there is no agreement
between Company or any Borrowing Base Guarantor, the related Account
Debtor and any other person for any rebate, discount, concession or
release of liability, in whole or in part;
(e) it is not an Account billed in advance of completion of
the applicable project, payable on delivery, for consigned goods, for
guaranteed sales, for unbilled sales, for progress billings, payable at
a future date in accordance with its terms, subject to a retainage or
holdback by the Account Debtor for longer than six months after start
up of the applicable installation (provided however that to the extent
any such Account which is otherwise an Eligible Account is subject to
retainage in excess of 10% of the total purchase price of the
applicable project, then in valuing such Account for the purpose of
calculating the Borrowing Base, the amount of such retainage in excess
of 10% shall be excluded from the calculation);
(f) the transactions leading to the creation of such Account
comply with all applicable local, state and federal laws and
regulations;
(g) either (i) Company or a Borrowing Base Guarantor has
granted to the Agent for the benefit of the Banks pursuant to or in
accordance with the Collateral Documents (except to the extent not
required to do so thereunder) a perfected security interest in such
Account prior in right to all other persons or entities or (ii) such
Account is secured by an Eligible Letter of Credit, and in either case
such Account has not been sold, transferred or otherwise assigned or
encumbered by Company or such Borrowing Base Guarantor to any person or
entity other than pursuant to or in accordance with the Collateral
Documents or this Agreement;
(h) such Account is not represented by any note, trade
acceptance, draft or other negotiable instrument or by any chattel
paper, except any such as has been endorsed and delivered by Company or
a Borrowing Base Guarantor pursuant to or in accordance with the
Collateral Documents or this Agreement on or prior to such Account's
inclusion in any applicable Borrowing Base Certificate;
(i) it is not owing by an Account Debtor which shall have
failed to pay in full any invoice(s) evidencing twenty five percent
(25%) or more of the aggregate amount of Accounts owing by such Account
Debtor to Company within ninety (90) days after the date of the
respective invoices;
(j) neither the Company nor the Borrowing Base Guarantor has
received, with respect to such Account, any notice of the death of the
related Account Debtor or any
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general partner thereof, nor of the dissolution, liquidation,
termination of existence, insolvency, business failure, appointment of
a receiver for any part of the property of, assignment for the benefit
of creditors by, or the filing of a petition in bankruptcy or the
commencement of any proceeding under any bankruptcy or insolvency laws
by or against, such Account Debtor; and
(k) the Account Debtor on such Account is not:
(i) an Affiliate of Company or any of its Subsidiaries,
(ii) the United States of America or any department,
agency, or instrumentality thereof unless the Company has
complied with the federal Assignment of Claims Act to the
Agent's satisfaction,
(iii) unless the applicable Account is secured by an
Eligible Letter of Credit, a citizen or resident of any
jurisdiction other than one of the United States, or
(iv) an Account Debtor whom Agent has, at the direction
or with the concurrence of the Majority Banks (in their
reasonable discretion), determined (based on such facts as the
Majority Banks deem appropriate) not to be acceptable to the
Majority Banks, and as to which Agent has so notified Company.
Any Account which is at any time an Eligible Account but which subsequently
fails to meet any of the foregoing requirements, shall forthwith cease to be an
Eligible Account.
For the purposes of this definition of Eligible Account, an "Eligible Letter of
Credit" is an irrevocable standby or trade letter of credit issued or confirmed
(i) by a commercial bank which is incorporated under the laws of the United
States or any state thereof and which has a long term debt rating of at least A-
(or an equivalent rating) by Standard and Poor's Ratings Group ("S&P") or A3 (an
equivalent rating) by Moody's Investor Services, Inc ("Moody's") or (ii) by a
U.S. branch of a foreign commercial bank which has a long term debt rating of at
least A (or an equivalent rating) by S&P or by Moody's, or in either case, an
equivalent rating from any other nationally recognized statistical rating
organization.
"Eligible Inventory" shall mean Inventory which has been included in a
Borrowing Base Certificate to determine the Borrowing Base and as to which
Inventory the following is true and accurate as of the time it was utilized to
determine the Borrowing Base:
(a) such item of Inventory is of merchantable quality,
consists of raw materials, work-in-process or finished goods and is
usable or saleable by Company or any Borrowing Base Guarantor in the
ordinary course of its business.
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(b) Company or a Borrowing Base Guarantor has granted to the
Agent for the benefit of the Banks pursuant to or in accordance with
the Collateral Documents (except to the extent not required to do so
thereunder) a perfected security interest in such item of Inventory
prior in right to all other persons or entities and such item of
Inventory has not been sold, transferred or otherwise assigned by
Company or such Borrowing Base Guarantor to any other Person;
(c) such item of Inventory is (i) located within the United
States of America, at such location or locations as Company or the
Borrowing Base Guarantors shall have represented in the Loan Documents,
relating to Inventory or (ii) is in transit to such locations under
proper documents of title establishing ownership thereof in Company or
a Borrowing Base Guarantor, provided that the aggregate value of
Inventory to be included in Eligible Inventory at any time under this
subparagraph (ii) shall not exceed $2,500,000; and
(d) the value of each item of Inventory utilized to determine
the Borrowing Base was determined in accordance with GAAP.
Any inventory which is at any time Eligible Inventory, but which subsequently
fails to meet any of the foregoing requirements, shall forthwith cease to be
Eligible Inventory.
"First Amendment" shall mean the Consent and First Amendment to Aqua-Chem, Inc.
Second Amended and Restated Revolving Credit Agreement dated as of June 27, 2000
by and among the Company, the Banks and the Agent.
"Required Borrowing Base Consolidated EBITDA" shall mean (i) as of June 30,
2000, $17,000,000, (ii) as of September 30, 2000, $18,000,000 (iii) as of
December 31, 2000, $18,500,000 and (iv) as of any date of determination
thereafter, $18,500,000.
4. Section 2 of the Credit Agreement is hereby amended as follows:
(a) Subsection 2.3 (c) of the Credit Agreement is hereby amended and
restated as follows:
(c) the principal amount of such requested Revolving Credit Advance,
plus the principal amount of all other Advances then outstanding
hereunder, plus the Letter of Credit Obligations, less the principal
amount of any outstanding Swing Line Advance or Revolving Credit
Advance to be refunded by the requested Revolving Credit Advance shall
not exceed the then applicable Revolving Credit Aggregate Commitment
and, during any
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Borrowing Base Activation Period, the lesser of then applicable
Revolving Credit Aggregate Commitment and the Borrowing Base;
(b) Section 2.7 of the Credit Agreement is hereby amended and restated
as follows:
Reduction of Indebtedness; Revolving Credit Aggregate
Commitment. If at any time and for any reason the aggregate
principal amount of Swing Line Advances and Revolving Credit
Advances hereunder to Company, plus the Letter of Credit
Obligations which shall be outstanding at such time, shall
exceed the Revolving Credit Aggregate Commitment then in
effect and, during any Borrowing Base Activation Period, the
lesser of the Revolving Credit Aggregate Commitment then in
effect and the Borrowing Base, the Company shall immediately
reduce any pending request for an Advance on such day by the
amount of such excess and, to the extent any excess remains
thereafter, immediately repay an amount of the Indebtedness
equal to such excess and, to the extent such Indebtedness
consists of Letter of Credit Obligations, provide cash
collateral on the basis set forth in Section 10.2 hereof.
Company acknowledges that, in connection with any repayment
required hereunder, it shall also be responsible for the
reimbursement of any prepayment or other costs required under
Section 12.1 hereof; provided, however, that Company shall, in
order to reduce any such prepayment costs and expenses, first
prepay such portion of the Indebtedness then carried as a
Prime-based Advance, if any.
(c) Clause (iii) of Section 2.8 is hereby amended and restated as
follows:
(iii) the Company shall prepay in accordance with the terms
hereof the amount, if any, by which the sum of the aggregate
unpaid principal amount of Swing Line Advances and Revolving
Credit Advances, plus the Letter of Credit Obligations,
exceeds the then applicable Revolving Credit Aggregate
Commitment and, during any Borrowing Base Activation Period,
the lesser of the then applicable Revolving Credit Aggregate
Commitment and the Borrowing Base, in each case taking into
account the aforesaid reductions of the Revolving Credit
Aggregate Commitment, together with accrued but unpaid
interest on the principal amount of such prepaid Advances to
the date of prepayment;
5. Subsection 3.2 (a) is hereby amended and restated as follows:
(a) the face amount of the Letter of Credit requested, plus the Letter
of Credit Obligations, does not exceed an amount equal to (i) the then
applicable Revolving Credit Aggregate Commitment and, during any
Borrowing Base Activation Period, the lesser of the then applicable
Revolving Credit Aggregate Commitment and the Borrowing Base
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minus (ii) the aggregate principal amount of Revolving Credit Advances
and Swing Line Advances at such time outstanding;
6. Section 4 of the Credit Agreement is hereby amended as follows:
(a) Section 4.1 is hereby amended and restated as follows:
4.1 Swing Line Advances. The Swing Line Bank shall, on the
terms and subject to the conditions hereinafter set forth
(including Section 4.3), make one or more advances (each such
advance being a "Swing Line Advance") to Company from time to
time on any Business Day during the period from the date
hereof to (but excluding) the Revolving Credit Maturity Date
in an aggregate amount not to exceed Four Million Dollars
($4,000,000) at any time outstanding; provided, however, that
after giving effect to all Swing Line Advances and all
Revolving Credit Advances requested to be made on such date,
the sum of the aggregate principal amount of all outstanding
Revolving Credit Advances, Swing Line Advances and Letter of
Credit Obligations shall not exceed the then applicable
Revolving Credit Aggregate Commitment and, during any
Borrowing Base Activation Period, the lesser of the then
applicable Revolving Credit Aggregate Commitment and the
Borrowing Base. All Swing Line Advances shall be evidenced by
the Swing Line Note, under which advances, repayments and
readvances may be made, subject to the terms and conditions of
this Agreement. Each Swing Line Advance shall mature and the
principal amount thereof shall be due and payable by Company
on the last day of the Interest Period applicable thereto. In
no event whatsoever shall any outstanding Swing Line Advance
be deemed to reduce, modify or affect any Bank's commitment to
make Revolving Credit Advances based upon its Percentage.
(b) Subsection 4.3 (c) is hereby amended and restated as follows:
(c) the principal amount of such requested Swing Line Advance, plus the
principal amount of all other Revolving Credit Advances and Swing Line
Advances then outstanding hereunder, plus the Letter of Credit
Obligations, shall not exceed the then applicable Revolving Credit
Aggregate Commitment and, during any Borrowing Base Activation Period,
the lesser of the then applicable Revolving Credit Aggregate Commitment
and the Borrowing Base;
7. Section 8 of the Credit Agreement is hereby amended as follows:
(a) Section 8.2 of the Credit Agreement is hereby amended by
re-denominating Subsection 8.2 (e) as Subsection 8.2 (f) and inserting
the following new Subsection 8.2 (e):
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(e) (i) Within 5 Business Days after the date of the
commencement of a Borrowing Base Activation Period and within
30 days after and as the end of each month during a Borrowing
Base Activation Period, a Borrowing Base Certificate, a
summary aging of accounts receivable and accounts payable and
an inventory listing which reconciles to the general ledger
(in form reasonably satisfactory to the Agent and the Banks);
and (ii) within 30 days after and as of the end of each fiscal
quarter, during a Borrowing Base Activation Period, a detailed
aging of accounts receivable and accounts payable and an
inventory listing which reconciles to the general ledger (in
form reasonably satisfactory to the Agent and the Banks);
(b) Section 8.11 of the Credit Agreement is hereby amended and restated
as follows:
8.11 Senior Funded Debt To Consolidated EBITDA Ratio.
Maintain, as of the end of each fiscal quarter, for the four
fiscal quarters then ended, a ratio of Senior Funded Debt To
Consolidated EBITDA of not more than 3.0 to 1.0.
8. This First Amendment shall become effective retroactive to March 31,
2000 (according to the terms hereof) upon satisfaction of the following
conditions:
(a) Agent shall have received via facsimile (followed by the prompt
delivery of original signatures), counterpart originals of this First
Amendment, in each case duly executed and delivered by the Company and
the requisite Banks and the Agent in form satisfactory to Agent and the
Banks.
(b) Agent shall have received via facsimile (followed by the prompt
delivery of original signatures) counterpart originals of an
Acknowledgment and Reaffirmation of Guaranty in each case duly executed
and delivered by each Guarantor in form satisfactory to Agent.
(c) Agent shall have received resolutions satisfactory to Agent
evidencing approval of this Amendment and the other Loan Documents
executed and delivered herewith and the matters covered thereby by the
boards of directors of Company and Guarantors.
(d) Company shall have paid to Agent, for distribution to the Banks, as
applicable, all interest, fees and other amounts, if any, owed to the
Agent and the Banks and accrued to the date hereof.
(e) Company shall have paid to Agent, for distribution to the Banks pro
rata according to the percentages, an amendment fee in the amount
$67,500.
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9. Company hereby represents and warrants that, after giving effect to
the amendments to the Credit Agreement, contained herein, (a) the conditions set
forth in Section 8 hereof have been satisfied, (b) execution and delivery of
this First Amendment and the performance by the Company of its obligations under
the Credit Agreement as amended hereby (herein, as so amended, the "Amended
Credit Agreement") are within the Company's corporate powers, have been duly
authorized, are not in contravention of law or the terms of Company's articles
of incorporation or bylaws, and except as have been previously obtained do not
require the consent or approval, material to the amendments contemplated in this
First Amendment, of any governmental body, agency or authority, and this First
Amendment will constitute the valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, reorganization, insolvency, moratorium, or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity (whether enforcement is sought in a proceeding in
equity or at law), (c) Company ratifies and confirms its obligations under the
Amended Credit Agreement and agrees that such Amended Credit Agreement hereby
remains in full force and effect after giving effect to the effectiveness of the
First Amendment and that, upon such effectiveness, all references in the Loan
Documents to the "Credit Agreement" shall be references to the Credit Agreement
as amended by the First Amendment, (d) the continuing representations and
warranties set forth in Sections 7.1 through 7.23 inclusive, of the Amended
Credit Agreement are true and correct on and as of the date hereof, and such
representations and warranties are and shall remain continuing representations
and warranties during the entire life of the Amended Credit Agreement, and (e)
as of the date hereof, no Default or Event of Default shall have occurred and be
continuing.
10. Except as specifically set forth above, this First Amendment shall
not be deemed to amend or alter in any respect the terms and conditions of the
Credit Agreement, any of the Notes issued thereunder or any of the other Loan
Documents, or to constitute a waiver by the Banks or Agent of any right or
remedy under or a consent to any transaction not meeting the terms and
conditions of the Credit Agreement, any of the Notes issued thereunder or any of
the other Loan Documents.
11. Unless otherwise defined to the contrary herein, all capitalized
terms used in this First Amendment shall have the meaning set forth in the
Credit Agreement.
12. This First Amendment may be executed in counterpart in accordance
with Section 14.10 of the Credit Agreement.
13. This First Amendment shall be construed in accordance with and
governed by the laws of the State of Michigan.
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[SIGNATURES FOLLOW ON SUCCEEDING PAGES]
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IN WITNESS WHEREOF, Company, the Banks and Agent have each caused this
First Amendment to be executed by their respective duly authorized officers or
agents, as applicable, all as of the date first set forth above.
COMERICA BANK, As Agent
By: /s/ Timothy O'Rourke
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Its:
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AQUA-CHEM, INC.
By: /s/ James A. Kettinger
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Its:
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SWING LINE BANK AND ISSUING COMERICA BANK
BANK:
By: /s/ Timothy O'Rourke
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Its:
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BANKS: COMERICA BANK
By: /s/ Timothy O'Rourke
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Its:
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FIRSTAR BANK, MILWAUKEE, N.A.
By: /s/ Caroline V. Krider
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Its:
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WELLS FARGO BANK
By: /s/ Steven Ashley
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Its:
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REAFFIRMATION OF CERTAIN LOAN DOCUMENTS
This Reaffirmation of Loan Documents dated as of June 27, 2000 (this
"Reaffirmation") executed by Rush Creek, LLC, a Wisconsin limited liability
company and CB-Kramer Sales and Service, Inc., a Delaware corporation (each, a
"Guarantor", and, collectively, the "Guarantors").
1. Each of the undersigned Guarantors acknowledges that the Company,
the Banks and the Agent have executed the Consent and First Amendment to Second
Amended and Restated Revolving Credit Agreement dated as of June 27, 2000 (the
"First Agreement"). Capitalized terms not otherwise defined herein will have the
meanings ascribed to them in the Second Amended and Restated Credit Agreement
dated as of June 23, 1998, as amended by the First Amendment..
2. Each of the undersigned Guarantors hereby ratifies and confirms its
obligations under its Guaranty and each of the other Reaffirmed Loan Documents
(as defined in the Reaffirmation of Certain Loan Documents dated June 23, 1998
executed by the Company and the Guarantors) to which such Guarantor is a party
and agrees that such Guaranty and other Reaffirmed Loan Documents remain in full
force and effect after giving effect to the effectiveness of the First Amendment
and that, upon such effectiveness, all references in the Loan Documents to the
"Credit Agreement" shall be references to the Credit Agreement as amended by the
First Amendment.
3. This Reaffirmation may be signed in counterparts and by the various
parties on separate counterparts. This Reaffirmation shall be governed by and
construed in accordance with the laws of the State of, and be enforceable in,
the State of Michigan. This Reaffirmation shall be binding upon the undersigned
and their respective successors and assigns. This Reaffirmation shall be
effective as of the date hereof.
***
[SIGNATURES FOLLOW ON SUCCEEDING PAGE]
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WITNESS, the due execution hereof as of the date and year first above
written.
RUSH CREEK, LLC, a Wisconsin limited liability
company
By: /s/ Jeffrey A. Miller
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Its: Manager
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CB-KRAMER SALES AND SERVICE, INC., a Delaware
corporation
By: /s/ James A. Kettinger
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Its:
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Signature Page to
Reaffirmation of Certain Loan Documents
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