Exhibit 10.6
May 5, 2004
AMENDMENT NO. 3
TO
AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
This Amendment No. 3 (the "Amendment No. 3") is entered into as of May 5,
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) ("Amendment No. 1") and Amendment No. 2 thereto dated as of April
21, 2004 ("Amendment No. 2") (as so amended, 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., a Delaware corporation ("ISG").
Background Information
A. Sellers and the Noteholders have agreed to the terms in which they will
resolve disputes between the Sellers and the Noteholders, which resolution will
include withdrawal of the Noteholders' appeals of the entry of the Sale Order by
the Bankruptcy Court. Certain of the terms of this resolution require amendment
of the Agreement.
B. Sellers, Buyer and ISG desire that the disputes between Seller and the
Noteholders be resolved, and therefore desire to amend the Agreement as provided
in this Amendment No. 3.
C. Capitalized terms in this Amendment No. 3 and not defined herein shall
have the respective meanings given to them in the Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are being
acknowledged, Sellers, Buyer and ISG hereby agree as follows:
1. The first sentence of Section 3.1 of the Agreement is hereby amended
and restated in its entirety as follows:
"The consummation of the transactions contemplated hereby (the
"Closing") shall take place at the offices of Jones Day, North Point,
901 Lakeside Avenue, Cleveland, OH 44114, at 10:00 a.m. eastern time
on or after May 17, 2004; provided, however, that Sellers' obligation
shall remain subject to the subrogation waiver by Sellers of the
conditions contained in Section 7.1 and Buyers' and ISG's obligations
shall be subject to the satisfaction or waiver of the conditions
contained in Section 7.2; provided, further, that the Closing may be
held at any other time or place, or on any other date (the date on
which the Closing actually occurs, the "Closing Date") by consent of
all of Sellers, Buyer and ISG."
2. Section 15 of Amendment No. 2 is hereby deleted (with the effect that
Section 5.1(i) of the Agreement and the definition of "Avoidance Action" are
restored in their original form.
3. Section 5.8 of the Agreement is hereby amended and restated in its
entirety as follows:
"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 as promptly as practicable after, May 17, 2004. 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 on or
prior to May 17, 2004 (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
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Sections 7.2(c), 7.2(g), 7.2(h) and 7.2(c) in connection with any
Closing on the Designated Date and shall use their respective best
efforts to effect the Closing on the terms set forth herein on the
Designated Date (provided that the conditions listed in clause (ii)
above remain satisfied on the Closing Date)."
4. Section 8.1(h) is hereby amended by the addition of the following
language, immediately after the words "chapter 7 case" at the end thereof:
"or (iv) the Closing has not occurred on May 17, 2004 (or such later
date as Buyer and Seller may hereafter select in accordance with
Section 11.9) as a result of the non-satisfaction or non-waiver of one
or more of the conditions contained in Section 7.1, and the
non-satisfaction of such condition or conditions does not result
principally from the inaccuracy of any representation or warranty of
Buyer or ISG, or the breach of any material covenant by Buyer or ISG,
in either case first occurring after May 5, 2004."
5. Article 12 of the Agreement is hereby amended by the addition of the
following definitions:
"Noteholders" means, collectively, the holders of WSC's 10% Senior
Secured Notes due 2008 and Secured Pollution Control Revenue Refunding
Bonds Series 2002, J.P. Morgan Trust Company, National Association and
the Informal Committee of Secured Noteholders.
6. The Agreement remains in full force and effect except as and to the
extent modified by this Amendment.
7. 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.
8. 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 No. 3 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/ Mark E. Kaplan
------------------------------------
Name: Mark E. Kaplan
Title: President
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
------------------------------------
Name: Gordon Spelich
Title: Vice President, Business Development