Exhibit 10.4
AMENDMENT NO. 1
TO
AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 (this "AMENDMENT") is entered into as of March
___, 2004 and amends that certain AMENDED AND RESTATED ASSET PURCHASE AGREEMENT
(the "AGREEMENT"), dated as of February 25, 2004, by and among Weirton Steel
Corporation, a Delaware corporation ("WSC"), FW Holdings, Inc., a Delaware
corporation ("FWH"), Weirton Venture Holdings Corporation, a Delaware
corporation ("WVHC"; collectively with WSC and FWH; "SELLERS" and each of them
individually, "SELLER"), ISG Weirton Inc., a Delaware corporation ("BUYER"), and
International Steel Group Inc. ("ISG").
BACKGROUND INFORMATION
A. Sellers, Buyer and ISG wish to amend the Agreement as provided in
this Amendment.
B. Capitalized terms used in this Amendment are used with the meanings
given those terms in the Agreement, and article and section references used in
this Amendment are references to Articles and Sections of the Agreement.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Sellers, Buyer and ISG hereby agree as follows:
1. Section 3.3(b)(i) is hereby amended to delete the closing
parenthesis following the phrase "to be applied on behalf of WSC" and to insert
a closing parenthesis after the phrase "Agent's and Lenders' claims against
WSC", so that the first parenthetical in that Section provides as follows:
"(to be applied on behalf of WSC to Agent's and Lenders'
claims against WSC)"
2. The amount of the Break-Up Fee is hereby changed from $6,375,000 to
$4,740,000 and Section 8.2(d) amended accordingly.
3. The last sentence of Section 8.2(e) is hereby deleted, so that
Section 8.2(e) provides as follows:
"Any payments of the Break-Up Fee or Expense Reimbursement
under this Section 8.2 shall be made by Sellers by wire
transfer of immediately available funds to an account
designated in writing by Buyer. Sellers acknowledge that the
Break-Up Fee or Expense Reimbursement (or any portion thereof)
are necessary and appropriate expenses for the administration
of their estates, pursuant to sections 503 and 507 of the
Bankruptcy Code, and that the Break-Up Fee and Expense
Reimbursement (or any
portion thereof) are allowed administrative expenses against
each of their estates."
4. Section 11.4(a) is hereby deleted and replaced with the following:
"Buyer shall have the right to assign to an Affiliate (each,
an "ASSIGNEE") any of its rights or obligations (including the
right to acquire any of the Acquired Assets) and may require
any such Assignee to pay all or a portion of the Purchase
Price or Purchase Price Increase and/or to assume all or a
portion of those Assumed Liabilities that are both described
in Section 1.3 and relate to the Acquired Assets acquired by
the Assignee ("ASSIGNABLE LIABILITIES"). In addition, Buyer
shall have the right to assign to any person or persons other
than an Affiliate (each, an "OTHER ASSIGNEE") any of its
rights or obligations to acquire any of the Nonoperating
Assets or the portion of the Owned Real Property constituting
[THE HEADQUARTERS,] the Owned Real Property located in
Jefferson County, Ohio [AND THE ISLAND] and the personal
property located thereon (including the right to acquire such
assets) any may require any such Other Assignee to pay a
portion of the Purchase Price or Purchase Price Increase and
to assume the Assignable Liabilities. In the event of any
assignment pursuant to this Section 11.4(a), ISG and Buyer
shall not be relieved of any liability or obligation
hereunder; provided that, if any Other Assignee fails to pay
the portion of the Purchase Price or Purchase Price Increase
for which such Other Assignee is obligated, ISG and Buyer will
be liable to Sellers for the payment of such amount; and
provided further that Buyer shall, with Sellers' approval,
which shall not be unreasonably withheld, be fully released
from such Assignable Liabilities upon their assumption by an
Assignee or an Other Assignee."
5. The definition of Alternative Transaction in Article 12 is hereby
deleted and replaced with the following:
""ALTERNATIVE TRANSACTION" means any transaction (regardless
of the form thereof) involving a sale of all or any
substantial portion of the Acquired Assets by Sellers to a
purchaser or purchasers other than Buyer."
6. The definition of DIP Obligations in Article 12 is hereby deleted
and replaced with the following:
""DIP OBLIGATIONS" means WSC's Obligations (as defined in the
DIP Agreement) as of the Closing Date except any such
obligations for indemnification of the Agent or any Lender, as
set forth in the certification of the Agent referred to in
Section 5.1(f). Buyer may elect, in its sole discretion, to
satisfy the portion of such obligations relating to Letters of
Credit or LC Guaranties by cash collateralizing such
obligations as required under the DIP Agreement (and any such
cash collateral will be held in escrow
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and upon the expiration of the Letter of Credit or LC
Guaranties giving rise thereto any cash collateral not
required to satisfy such obligations will promptly be returned
to Buyer) or by causing a letter of credit for any remaining
obligations to be issued to the Agent), and in either such
case the amount of the DIP Obligations used in determining the
Purchase Price Increase will not double count any amounts
arising from such Letters of Credit or LC Guaranties."
7. The Agreement remains in full force and effect except as and to the
extent modified by this Amendment.
8. This Amendment shall be construed, performed and enforced in
accordance with, and governed by, the laws of the State of New York (without
giving effect to the principles of conflicts of laws thereof), except to the
extent that the laws of such State are superseded by the Bankruptcy Code or
other applicable federal law.
9. This Amendment may be executed in counterparts, each of which shall
be deemed an original, but all of which shall constitute the same agreement.
[SIGNATURES ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
BUYER:
ISG WEIRTON INC.
By: /s/ Gordon Spelich
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Name: Gordon Spelich
Title: Vice President and Assistant Secretary
SELLERS:
WEIRTON STEEL CORPORATION
By: /s/ D. Leonard Wise
---------------------------------------------
Name: D. Leonard Wise
Title: Chief Executive Officer
FW HOLDINGS INC.
By: /s/ Mark E. Kaplan
---------------------------------------------
Name: Mark E. Kaplan
Title: President
WEIRTON VENTURE HOLDINGS CORPORATION
By: /s/ Mark E. Kaplan
---------------------------------------------
Name: Mark E. Kaplan
Title: President
ISG:
INTERNATIONAL STEEL GROUP INC.
By: /s/ Gordon Spelich
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Name: Gordon Spelich
Title: Vice President, Business Development