Exhibit 10.2
AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
Amendment dated as of May 6, 2003 (this "AMENDMENT") to that Asset
Purchase Agreement, dated as of March 12, 2003 and amended by Amendment No. 1
thereto, dated as of April 22, 2003 (the "ASSET PURCHASE AGREEMENT") by and
among Bethlehem Steel Corporation, a Delaware corporation ("PARENT"), the other
Sellers (as defined in the Asset Purchase Agreement), ISG Acquisition Inc., a
Delaware corporation ("BUYER"), and International Steel Group Inc., a Delaware
corporation ("ISG").
BACKGROUND INFORMATION
A. Section 11.10 of the Asset Purchase Agreement provides that the
Asset Purchase Agreement may be amended by a written instrument executed by ISG,
Buyer and Parent.
B. ISG, Buyer and Parent desire to amend the Asset Purchase Agreement
and certain Disclosure Schedules related thereto.
STATEMENT OF AGREEMENT
In consideration of the premises and their respective
representations, warranties, covenants and undertakings herein contained, and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I DEFINITIONS
Section 1.1 Definitions. Capitalized terms used in this Amendment and
not defined herein shall have the respective meanings assigned them in the Asset
Purchase Agreement.
ARTICLE II AMENDMENTS
Section 2.1 Amendment to Article 1.
(a) Section 1.1(m) of the Asset Purchase Agreement is hereby amended
by deleting the words "and Section 5.3(i)".
(b) Section 1.1(r) of the Asset Purchase Agreement is hereby amended
by deleting the word "and" at the end of that section.
(c) Section 1.1(s) of the Asset Purchase Agreement is hereby amended
by replacing the period at the end of that section with a semicolon immediately
followed by the word "and".
(d) A new Section 1.1(t) is hereby added to the Asset Purchase
Agreement and reads in its entirety as follows:
"(t) all (i) of Keystone Railroad LLC's equity interest in
BethIntermodal LLC ("BETHINTERMODAL") and (ii) to the extent in the
possession of Sellers, corporate seals, minute books, charter
documents, record books, copies of Tax and financial records and such
other files, books and records of Sellers relating to the
organization, existence and capitalization of BethIntermodal."
(e) Section 1.2 of the Asset Purchase Agreement is hereby amended by
adding the phrase "(other than Hibbing Land Corporation ("HLC") and Bethlehem
Hibbing Corporation ("BHC"))" after the occurrence of the words "Sellers'",
"Sellers" and "any Seller" in each subsection thereof, other than subsection (a)
thereof and in the text of Section 1.2.
(f) Section 1.2(j) of the Asset Purchase Agreement is hereby amended
by adding the words "or BethIntermodal" after each occurrence of the words
"Joint Ventures".
(g) Section 1.3 of the Asset Purchase Agreement is hereby amended by
adding the phrase "(other than HLC and BHC)" after each occurrence of the words
"Sellers" and "any Seller" in the text thereof and in each subsection thereof.
(h) Section 1.3(f) of the Asset Purchase Agreement is hereby amended
by replacing the term "Seller" appearing therein with the term "Sellers".
Section 2.2 Amendment to Section 2.2.
(a) Section 2.2(a) of the Asset Purchase Agreement is hereby amended
by replacing the words "the Closing Date" in each place where such words appear
with the date "April 30, 2003".
(b) Section 2.2(a) of the Asset Purchase Agreement is hereby further
amended by replacing the word "and" immediately preceding "(iv)" of Section
2.2(a) with a comma and by adding a new clause (v), which reads in its entirety
as follows:
"and (v) such amount shall be increased on a
dollar-for-dollar basis by the amount of any interest on Seller's
payment obligations arising under the Secured Financings (other than
those Secured Financings, if any, being assumed by Buyer in
connection with the transactions contemplated hereby) accrued and
unpaid from 12:01 a.m., New York City time, on May 1, 2003 through
and including the Closing Date."
Section 2.3 Amendment to Section 3.2.
(a) Section 3.2(a) of the Asset Purchase Agreement is hereby amended
by adding the following sentence as the final sentence of Section 3.2(a):
"At Closing, the conveyance of the following equity
interests shall be deemed for all purposes to have occurred in the
following sequence: first, Parent's equity interest in HLC shall be
duly conveyed to Buyer or its Affiliates; second, BHC's equity
interest in each of Ontario Iron Company and Hibbing Development
Company shall be duly conveyed to Buyer or its Affiliates; and third,
Parent's equity interest in BHC shall be duly conveyed to Buyer or
its Affiliates."
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(b) Section 3.2(b)(ii) of the Asset Purchase Agreement is hereby
amended by replacing the words "the Closing" with the date "April 30, 2003."
Section 2.4 Amendment to Section 3.4. Section 3.4(a) of the Asset
Purchase Agreement is hereby amended by replacing each occurrence, other than
the first occurrence, of the words "the Closing Date" with the date "April 30,
2003".
Section 2.5 Amendment to Section 5.1. Section 5.1(a)(xii) is hereby
amended by deleting the words "and Section 5.3(i)" after the word "Section
5.3(f)".
Section 2.6 Amendment to Section 5.3.
(a) The first sentence of Section 5.3(f) of the Asset Purchase
Agreement is hereby amended by deleting the words "Except as provided in Section
5.3(i) with respect to Parent's interests in Hibbing Land Corporation and
Bethlehem Hibbing Corporation".
(b) Section 5.3(l) of the Asset Purchase Agreement is hereby deleted
in its entirety.
Section 2.7 Amendment to Section 7.2.
(a) The introductory clause of Section 7.2 of the Asset Purchase
Agreement is hereby amended by deletion of the following parenthetical: "(other
than the condition contained in Section 7.2(c)".
(b) Section 7.2(k) of the Asset Purchase Agreement is hereby deleted
in its entirety.
Section 2.8 Amendment to Section 12.1. The defined term "Sellers" is
hereby amended by deleting the words "BethIntermodal LLC" and "Bethlehem Steel
Foundation" included therein.
Section 2.9 Amendment to Disclosure Schedules. Schedules 1.1(d),
1.1(m), 1.2(a), 4.1(h)(ii), 4.1(i) and 4.1(p) are hereby amended and restated as
composite Exhibit A attached hereto.
ARTICLE III MISCELLANEOUS
Section 3.1 Full Force and Effect. The Asset Purchase Agreement, as
amended by this Amendment, remains in full force and effect.
Section 3.2 Counterparts. This Amendment may be executed in
counterparts, each of which shall be an original and all of which together shall
constitute a single agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their duly authorized officers as of the date first written
above.
INTERNATIONAL STEEL GROUP INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: President
ISG ACQUISITION INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: President
BETHLEHEM STEEL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
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