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EXECUTION
COPY
EXHIBIT
10.6
FOURTH AMENDMENT
TO
SIXTH AMENDED AND
RESTATED
REVOLVING CREDIT AND TERM
LOAN AGREEMENT AND CONSENT
This Fourth Amendment to
Sixth Amended and Restated Revolving Credit and Term Loan Agreement
and Consent (“Fourth Amendment”) is made as of
August 24, 2007, by and among Noble International, Ltd.
(“Borrower”), the Lenders parties thereto from time to
time and Comerica Bank, as Agent for the Lenders (the
“Agent”).
RECITALS
A. Borrower, Agent and the
Lenders entered into that certain Sixth Amended and Restated
Revolving Credit and Term Loan Agreement dated as of
December 11, 2006, as amended by the First Amendment dated as
of March 14, 2007, by the Second Amendment dated as of
March 28, 2007 and by the Third Amendment dated as of
May 8, 2007 (as amended or otherwise modified from time to
time, the “Credit Agreement”) under which the Lenders
extended (or committed to extend) credit to the Borrower, as set
forth therein.
B. Borrower has requested
that Agent and the Lenders consent to (i) its acquisition of
the Equity Interests of Tailor Steel America, LLC
(“TSA”), (ii) its acquisition through its
subsidiary, Noble European Holdings B.V. (“Noble BV”)
of the Equity Interests of TBA Holding B.V. (“TBA
Holding”) from Arcelor S.A. (“Arcelor”),
(iii) certain actions taken in connection with the acquisition
of TSA and the acquisition of TBA Holding to facilitate such
acquisitions and (iii) make certain other amendments to the
Credit Agreement, and Agent and the Lenders are willing to do so,
but only on the terms and conditions set forth in this Fourth
Amendment.
NOW, THEREFORE ,
Borrower, Agent and the Lenders agree:
| 1. |
The Agent and the requisite Lenders hereby consent to the
acquisition of all of the Equity Interests of TSA and the
acquisition of all of the Equity Interests of TBA Holding for an
acquisition price and substantially on the terms and conditions set
forth in the Share Purchase Agreement dated as of March 15,
2007, by and between Arcelor S.A. and Noble International, Ltd.
(the “TSA Acquisition”), subject to the following
conditions: |
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(a) |
both before and after giving effect to the TSA Acquisition,
Borrower shall be in compliance with all financial covenants in the
Credit Agreement, in each case on a pro forma basis acceptable to
the Agent and the Majority Lenders; |
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(b) |
both before and after giving effect to the TSA Acquisition,
Unused Revolving Credit Availability shall not be less than
$10,000,000; |
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(c) |
both before and after giving effect to the TSA Acquisition, no
Default or Event of Default shall have occurred and be
continuing; |
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(d) |
the board of directors of the seller of the TSA Equity
Interests shall not have disapproved such transaction or
recommended that such transaction be disapproved; and |
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(e) |
Borrower shall have satisfied the requirements set forth in
Section 8 of this Fourth Amendment. |
| 2. |
Section 1 of the Credit Agreement is hereby amended as
follows: |
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(a) |
The following definitions are hereby added to Section 1 of
the Credit Agreement: |
“Arcelor Acquisition
Documents” shall mean the Share Purchase Agreement dated as
of March 15, 2007 by and among Arcelor S.A. and Borrower, and
any other material related agreements arising from or entered into
pursuant to the terms thereof.
“Arcelor Seller
Subordinated Debt” shall mean unsecured Debt of Borrower
evidenced by the Arcelor Seller Subordinated Note.
“Arcelor Seller
Subordinated Note” shall mean that certain Subordinated
Promissory Note issued by Borrower to Arcelor S.A., dated as of
August 31, 2007, in form and substance acceptable to the Agent
and the Majority Lenders, as the same may be amended or otherwise
modified from time to time in compliance with this
Agreement.
“Excluded Foreign
Subsidiary” shall mean any Subsidiary organized under the
laws of any European country, China or India.
“Fourth
Amendment” shall mean the Fourth Amendment to Sixth Amended
and Restated Revolving Credit and Term Loan Agreement and Consent
dated as of August 24, 2007.
“TBA
Acquisitions” shall mean the acquisitions contemplated by the
Arcelor Acquisition Documents.
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(b) |
The following definitions are hereby amended and restated in
their entirety: |
“Change in
Control” shall mean any of the following events or
circumstances: (a) any Person or “group” (within
the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended) other than Robert J. Skandalaris
(or trusts, limited liability companies or partnerships established
for his benefit or the benefit of his family members in which he is
the trustee, manager or managing general partner) shall either
(i) acquire beneficial ownership of more than 45% of any
outstanding class of common stock of Borrower having ordinary
voting power in the election of directors of
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Borrower or
(ii) obtain the power (whether or not exercised) to elect a
majority of Borrower’s directors, (b) Robert J.
Skandalaris shall cease to exercise substantially the same or
greater duties and responsibilities as those he exercises as of the
Restatement Date as Chairman of Borrower or (c) any
“Change of Control”, as such term or similar concept is
defined in any Subordinated Debt Document.
“Seller Debt”
shall mean (i) the Arcelor Seller Subordinated Debt and
(ii) such other unsecured, subordinated Debt of Borrower or
any Loan Party incurred pursuant to a Permitted Acquisition and
having a term extending at least beyond the later of the Revolving
Credit Maturity Date and the Term Loan Maturity Date, with no
amortization until such date and with no call option or other
provision for mandatory repayment except for acceleration on
default, and as to which the terms of the subordination and all of
the material terms of which, including, without limitation, the
maturity date, terms of amortization, interest rate, restrictive
covenants and defaults, shall be reasonably acceptable to the
Majority Lenders.
“Seller Notes”
shall mean (i) the Arcelor Seller Subordinated Note and
(ii) such other unsecured, subordinated notes issued by
Borrower or any Loan Party to evidence Seller Debt, in each case in
form and substance acceptable to the Agent and the Majority
Lenders.
| 3. |
The preamble to Section 6 is hereby amended and restated
as follows: |
“Borrower represents
and warrants with respect to itself and its Subsidiaries (other
than any Excluded Foreign Subsidiary) and, to the extent not
prohibited or restricted under applicable law, with respect to all
other Loan Parties, and such representations and warranties shall
survive until the expiration of all Letters of Credit and final
payment in full of the Indebtedness, the performance by Borrower
and the Loan Parties of all other obligations under this Agreement
and the other Loan Documents and the termination of all commitments
to extend credit under any Loan Document:”
| 4. |
Section 7 of the Credit Agreement is hereby amended as
follows: |
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(a) |
The preamble to Section 7 is hereby amended and restated
as follows: |
“Borrower covenants
and agrees that it will, and, as applicable, it will cause each of
its Subsidiaries (other than any Excluded Foreign Subsidiary),
until the expiration of all Letters of Credit and final payment in
full of the Indebtedness,
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the performance by
Borrower and the other US/Canadian Companies of all other
obligations under this Agreement and the other Loan Documents and
the termination of all commitments to extend credit under any Loan
Document, to:”
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(b) |
The words “ (other than any Excluded Foreign
Subsidiary)” shall be added immediately following the
references to “Significant Foreign Subsidiary” in
Section 7.20(b)(ii). |
| 5. |
Section 8 of the Credit Agreement is hereby amended as
follows: |
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(a) |
The preamble to Section 8 is hereby amended and restated
as follows: |
“Borrower covenants
and agrees that, until the expiration of all Letters of Credit and
final payment in full of the Indebtedness, the performance by
Borrower and the other US/Canadian Companies of all other
obligations under this Agreement and the other Loan Documents and
the termination of all commitments to extend credit under any Loan
Document, it will not, and will not permit (i) with respect to
Sections 8.1, 8.2 and 8.3, and any of its Subsidiaries (other than
any Excluded Foreign Subsidiary) and (ii) with respect to all
of the provisions this Article 8, any of the other US/Canadian
Companies to:”
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(b) |
Clause (h) of Section 8.1 is hereby amended and
restated as follows: |
“(h)(i) the Arcelor
Seller Debt and (ii) other Seller Debt not exceeding
$10,000,000 in aggregate principal amount at any one time
outstanding;”
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(c) |
Section 8.1 is further amended by adding the word
“and” at the end of clause (i); deleting the “;
and” at the end of clause (j) and replacing it with a
period (“.”); and deleting clause (k) in its
entirety. |
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(d) |
Clause (g) of Section 8.2 is hereby amended and
restated as follows: |
“(g) Reserved;
and”
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(e) |
Clauses (e) and (g) of Section 8.3 are hereby
amended and restated as follows: |
“(e)
Reserved;”
“(g)
Reserved.”
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(f) |
Section 8.4 is hereby amended by replacing the period
(“.”) at the end of clause (b) with “;
and”; |
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