EXHIBIT 10.3
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.
▇. ▇▇▇▇▇▇▇, Buyers 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 ▇▇▇▇▇ Day,
North Point, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 Buyers shall waive the conditions
contained in 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)."
2
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, ▇.▇. ▇▇▇▇▇▇ 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)
3
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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
SELLERS:
WEIRTON STEEL CORPORATION
By:
-------------------------------------
Name:
-------------------------------------
Title
-------------------------------------
FW HOLDINGS, INC.
By:
-------------------------------------
Name:
-------------------------------------
Title
-------------------------------------
WEIRTON VENTURE HOLDINGS CORPORATION
By:
-------------------------------------
Name:
-------------------------------------
Title
-------------------------------------
ISG
INTERNATIONAL STEEL GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Business Development
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:
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
SELLERS:
WEIRTON STEEL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: President
---------------------------------------
FW HOLDINGS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: President
---------------------------------------
WEIRTON VENTURE HOLDINGS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: President
---------------------------------------
ISG
INTERNATIONAL STEEL GROUP, INC.
By:
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Business Development
