Exhibit 10.5
AMENDMENT NO. 2
TO
AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
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THIS AMENDMENT NO. 2 (this "AMENDMENT") is entered into as of April 21,
2004 and amends that certain AMENDED AND RESTATED ASSET PURCHASE AGREEMENT,
dated as of February 25, 2004 (as amended by Amendment No. 1 thereto dated as of
March 8, 2004, the "AGREEMENT"), 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 to 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 1.1(a) of the Agreement is hereby deleted and replaced with
the following:
"all owned real property, including, without limitation, the
real property identified on Schedule 1.1(a) (the "OWNED REAL
PROPERTY"), and all real property leased pursuant to an
Acquired Contract (the "LEASED REAL Property," and together
with the Owned Real Property, the "REAL PROPERTY") together
with all appurtenant, subsurface and mineral rights, licenses,
rights-of-way, privileges and easements belonging to,
appertaining to or benefiting the Real Property in any way and
all Improvements erected thereon;".
2. Schedule 1.1(a) to the Agreement is hereby amended to delete Section
B thereof entitled "Leased Real Property (with a Seller as Lessee)."
3. Schedule 1.1(c) to the Agreement is hereby amended by the addition
of the Contracts listed on Exhibit A hereto (collectively, the "MABCO
AGREEMENTS").
4. Section 1.2(d) of the Agreement is hereby amended by the insertion
of the following words at the beginning thereof:
"Other than Claims arising under or in connection with the MABCO
Agreements or the transactions giving rise thereto (which Claims
are Acquired Assets to the extent not waived or released at
Closing),".
5. Schedule 1.2(k) to the Agreement is hereby amended and restated in
the form attached as Exhibit B hereto.
6. Schedule 1.3(e) to the Agreement is hereby amended and restated in
the form attached as Exhibit C hereto.
7. Section 1.7 of the Agreement is hereby amended by the addition of
the following sentences as the new last sentences thereof:
"In addition to the other services contemplated by this Section
1.7, Buyer shall provide Sellers with (x) use of office space,
office machines, telephones and similar services, for a period not
to exceed six months and in a manner that does not interfere with
Buyer's conduct of its business, (y) use of Sellers' existing
computer systems (including payment of not more that $550,000 per
month in fees to insure the availability thereof) for not less than
two months, and (z) up to an aggregate of $3,000,000 in
reimbursement of out-of-pocket costs actually incurred in the
winding up of Sellers' estates."
8. Schedule 1.8 of the Agreement is hereby amended to the extent set
forth on Exhibit D hereto.
9. The first sentence of Section 2.2(a) of the Agreement is hereby
amended and restated in its entirety as follows:
"Prior to the Closing, Buyer shall either (i) remove not less than
$8,200,000 of Accounts Payable otherwise included in the definition
of Assumed Liabilities or (ii) remove such lesser amount of
Accounts Payable as Buyer may elect and increase the Purchase Price
by the difference between $8,200,000 and such lesser amount."
10. Section 2.2(b) of the Agreement is hereby amended to change all
references to "item 6" therein to "item 7" and the reference to "item 7" therein
to "item 6".
11. The penultimate sentence of Section 2.3 of the Agreement is hereby
amended and restated in its entirety as follows:
"The Purchase Price shall be reduced by the amount, if any, by
which the sum of the D&O Tail Premium and the Employment Practices
Premium exceeds $3,500,000."
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12. Section 3.2 of the Agreement is hereby amended as follows:
(a) The word "and" is deleted from the end of Section 3.2(d);
(b) the period at the end of Section 3.2(e) is deleted and replaced
with "; and"; and
(c) a new Section 3.2(f) is added, as follows:
"(f) Sellers shall deliver to Buyer a waiver and release of all
Sellers' Claims against MABCO and the owners of the equity thereof,
in form and substance reasonable satisfactory to counsel to MABCO."
13. Section 3.3 of the Agreement is hereby amended as follows:
(a) The word "and" is deleted from the end of Section 3.3(d);
(b) the period at the end of Section 3.3(e) is deleted and replaced
with "; and"; and
(c) a new Section 3.3(f) is added, as follows:
"(f) Buyer shall deliver, or cause to be delivered, to Sellers a
waiver and release of all of the Claims of MABCO and the owners of
the equity of MABCO against Sellers, in form and substance
reasonable satisfactory to counsel to Sellers.".
14. Sellers have advised Buyer that the representations and warranties
described on Exhibit E are not true and correct as of the date hereof, as
required under the Agreement. To the extent provided on Exhibit E, Buyer and ISG
hereby waive any right they may have to terminate the Agreement as a result of
such inaccuracies.
15. Section 5.1(i) of the Agreement and the definition of "Avoidance
Actions" in Article 12 are hereby deleted.
16. Article 5 of the Agreement is hereby amended by the addition of the
following new sections thereof:
"5.7. MABCO Covenants. Until the Closing, (a) Sellers' shall take
such action in respect of any Claims that any of them has asserted
or could assert in connection with the MABCO Agreements as Buyer
may reasonably request including, without limitation, staying the
prosecution of such Claims, (b) Sellers shall at Buyer's request
enter into any settlement or similar agreement with MABCO with
respect to any or all of the MABCO Agreements, provided that such
settlement or agreement becomes operative only upon Closing and
contains the releases contemplated in Section 3.3(f), and (c) Buyer
shall cause MABCO not to assert any new Claims, and to stay the
prosecution of any existing Claims, against any Seller.
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"5.8 Timing and Coordination of Closing.
"(a) Notwithstanding anything to the contrary in Section 3.1, Buyer
and Sellers shall prepare to, and shall use best efforts to,
consummate the transactions contemplated by this Agreement on the
terms set forth herein on or before May 4, 2004 (the "DESIGNATED
DATE"). Best efforts shall not require any party to make any effort
to or spend any money to settle any dispute with any creditor of
Sellers.
"(b) Sellers acknowledge that they have designated Buyer as the
Successful Bidder under the Bid Procedures Order. If at any time
prior to the Designated Date (i) the Sale Order approving the sale
to Buyer as the Successful Bidder has been entered, (ii) the
conditions contained in Sections 7.2(a), 7.2(b), 7.2(d), 7.2(f),
7.2(j), 7.2(n) and 7.2(p) are satisfied, and (iii) Sellers notify
ISG and Buyer of the occurrence of the satisfaction of the
conditions described in clauses (i) and (ii) of this Section
5.8(b), then ISG and Buyer shall waive the conditions contained in
Sections 7.2(c), 7.2(g), 7.2(h) and 7.2(o) in connection with any
Closing on or prior to the Designated Date and shall use their
respective best efforts to effect the Closing on the terms set
forth herein on or prior to the Designated Date (provided that the
conditions listed in clause (ii) above remain satisfied on the
Closing Date)."
17. The conditions to closing contained in Sections 7.1(e), 7.2(e),
7.2(i), 7.2(k), 7.2(l) and 7.2(m) of the Agreement have been satisfied, have
been waived or have expired, and are of no further force or effect.
18. The Agreement remains in full force and effect except as and to the
extent modified by this Amendment.
19. 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.
20. 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
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Name: D. Leonard Wise
Title: Chief Executive Officer
FW HOLDINGS INC.
By: /s/ Mark E. Kaplan
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Name: Mark E. Kaplan
Title: President
WEIRTON VENTURE HOLDINGS CORPORATION
By: /s/ Mark E. Kaplan
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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