Exhibit 2.2
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT, dated as of May 20, 2003
(this "Amendment"), is entered into by and between United States Steel
Corporation, a Delaware corporation ("USS" or "Buyer"), and National Steel
Corporation, a Delaware corporation ("NSC" or the "Company"). Capitalized terms
used but not otherwise defined herein shall have the meanings set forth in the
Purchase Agreement (as defined below).
WHEREAS, Buyer, the Company and certain of the Company's subsidiaries
(collectively with the Company, "Sellers" and each a "Seller") are parties to
that certain Asset Purchase Agreement, dated as of April 21, 2003 (the "Purchase
Agreement") pursuant to which Buyer has agreed to purchase the assets and assume
the liabilities relating to the Business (as defined in the Purchase Agreement)
as are specified in the Purchase Agreement, all in the manner and subject to the
terms and conditions set forth in the Purchase Agreement and pursuant to, inter
alia, Sections 363 and 365 of the Bankruptcy Code; and
WHEREAS, pursuant to Section 11.6 of the Purchase Agreement, Buyer and the
Company desire to amend the Purchase Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises, and the representations,
warranties, covenants and agreements contained in the Purchase Agreement, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Amendment of Section 3.3. Section 3.3 of the Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"3.3 Purchase Price. In consideration of the Acquired Assets, and subject
to the terms and conditions of this Agreement, Buyer shall assume the
Assumed Liabilities as provided in Section 2.3 and at the Closing shall
pay to Sellers an aggregate purchase price (the "Purchase Price") of
$1,051.36 million comprised of: (a) the Deposit Escrow, which shall be
transferred directly to Sellers by the Escrow Agent; (b) subject to
Section 3.4(a) and Section 3.4(b), $844.86 million in immediately
available funds, by wire transfer to an account or accounts designated by
Sellers (together with the Deposit Escrow, the "Cash Consideration"); and
(c) $200 million by assumption of the Assumed Liabilities. Each Seller
shall receive that portion of the Cash Consideration set forth opposite
such Seller's name on Schedule 3.3 hereof."
2. Amendment of Schedule 2.1(c). Schedule 2.1(c) to the Purchase Agreement is
hereby amended and restated in its entirety to read as set forth on
Exhibit A attached hereto.
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3. Environmental Matters.
(a) With respect to property located in Granite City, Illinois, it
is agreed that on and after the Closing Date, USS shall accept (i)
landfill leachate from NSC's Section III Landfill (as defined on Exhibit B
attached hereto) and Section IV Landfill (as defined on Exhibit C attached
hereto) and (ii) stormwater from NSC-retained property located east of the
property acquired by USS into the Wastewater Treatment System acquired by
USS. It is further agreed with respect to the Granite City, Illinois
property that USS will promptly reimburse NSC for (i) one-hundred percent
(100%) of the first $1.78 million in costs associated with the closure of
the Section IV Landfill; (ii) fifty percent (50%) of the next $1.02
million in costs associated with the closure of the Section IV Landfill
and (iii) fifty percent (50%) of the costs associated with all
post-closure care obligations, including without limitation, any remedial
and/or investigatory actions that may be required for the Section IV
Landfill. USS and NSC shall mutually agree on all plans relating to such
closure and remediation and shall cooperate in good faith in developing
and implementing such plans, in each case in accordance with applicable
law.
(b) With respect to the Midwest facility, USS and NSC will cooperate
in working with the State of Indiana to have the existing hazardous waste
permit covering the Greenbelt I and Greenbelt II hazardous waste landfills
reissued as two separate permits to reflect the retention of Greenbelt I
by NSC and the ownership of Greenbelt II by USS. Specifically, NSC and USS
will take the following actions: (i) NSC and USS will send a joint letter
to the Indiana Department of Environmental Management ("IDEM") requesting
the transfer of the State of Indiana Hazardous Waste Management Permit No.
IND016584641 to USS and issuance of a new EPA I.D. number for USS; (ii)
NSC and USS will each send a letter to IDEM notifying the agency of
anticipated noncompliance with permitting rules because of the time
required to approve the permit transfer, anticipating that IDEM will
exercise discretion and not enforce pertinent permitting rules during this
period; (iii) USS will file a Class I Permit Modification with IDEM to
transfer the Permit and to request authority to operate the Greenbelt II
Landfill; (iv) NSC will file a Post-Closure Permit application covering
the Greenbelt I Landfill and the PreCoat SWMU; and (v) USS will file a
Class III Permit Modification to remove the Greenbelt I Landfill and the
PreCoat SWMU from the Permit. Pending the issuance of a hazardous waste
permit for Greenbelt II to USS, it is agreed that on and after the Closing
Date, USS shall be responsible for any and all liabilities associated with
the ownership and operation of the Greenbelt II Landfill.
(c) With respect to the PreCoat Solid Waste Management Unit ("SWMU")
property at the Midwest facility, it is agreed that, if required under a
State or federal sampling, monitoring, and/or investigation plan, USS will
grant NSC, its successors and assigns, access to USS's portion of the
PreCoat SMWU property for required sampling and monitoring pursuant to a
mutually acceptable easement.
(d) With respect to any permits applicable to Greenbelt II Landfill
at Midwest, NPDES Permit No. IN0000337 at Midwest and Permit No.
IN-127-1W-006 at Midwest only, which have not been transferred as of the
Closing Date, USS agrees
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to be responsible for any and all liabilities that arise after Closing
under such permits resulting from the ownership and operation of the
former NSC facilities by USS.
4. Rejection of Certain Agreements. Sellers shall reject (i) that certain
Participation Agreement, dated as of September 1, 1987, between National
Acquisition Corporation, Grant Holdings, Inc., The Connecticut National
Bank, The Fuji Bank and Trust Company, Mitsubishi International
Corporation, Marubeni America Corporation, the Company, Mitsubishi
Corporation, Marubeni Corporation and The Connecticut Bank and Trust
Company, National Association, as amended by Amendment No. 1 thereto,
dated as of November 18, 1987 and (ii) that certain Tax Indemnification
Agreement, dated as of September 1, 1987, between National Acquisition
Corporation and Grant Holdings, Inc., as amended by Amendment No. 1
thereto, dated as of November 18, 1987, and Buyer shall indemnify Sellers
for any and all claims arising from the rejection of such agreements and
from any other claims arising thereunder.
5. Miscellaneous.
(a) Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. Counterparts to
this Amendment may be delivered via facsimile. In proving this Amendment,
it shall not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.
(b) No Further Effect. Except as expressly set forth herein, this
Amendment shall not, by implication or otherwise, alter, modify, amend or
in any way affect any of the terms, conditions, obligations or agreements
contained in the Purchase Agreement and the Purchase Agreement shall
remain in full force and effect in accordance with its terms.
(c) References. Each reference in the Purchase Agreement to "this
Agreement," "herein," "hereof" and words of like import and each reference
to the "Purchase Agreement" in each other agreement, including, without
limitation, each agreement attached as an exhibit to the Purchase
Agreement, entered into between Buyer and Sellers in connection with the
Transaction shall mean the Purchase Agreement as amended hereby. Each
reference in the Purchase Agreement to a Schedule to the Purchase
Agreement shall mean the Schedules to the Purchase Agreement as amended
hereby. Each reference to the "Agreement" in any Schedule to the Purchase
Agreement and in the Disclosure Schedule shall mean the Purchase Agreement
as amended hereby.
(d) Choice of Law. This Amendment shall be construed and
interpreted, and the rights of the parties shall be determined, in
accordance with the substantive laws of the State of Delaware, without
giving effect to any provision thereof that would require the application
of the substantive laws of any other jurisdiction, except to the extent
that such laws are superseded by the Bankruptcy Code.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by
the duly authorized officers of Buyer and the Company as of the date first above
written.
UNITED STATES STEEL CORPORATION
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Vice Chairman, Chief Legal &
Administrative Officer, General
Counsel and Secretary
NATIONAL STEEL CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Vice President & Chief
Financial Officer
SIGNATURE PAGE TO FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
