Exhibit 10.11
AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT
AMENDMENT No. 3 (the "Amendment"), dated as of July 8, 2002, to Asset
Purchase Agreement, dated as of February 26, 2002 (the "Asset Purchase
Agreement"), by and among LTV Steel Company, Inc., River Terminal Railway
Company, Chicago Short Line Railway Company, The Cuyahoga Valley Railway
Company, The LTV Corporation, LTV Electro-Galvanizing, Inc. and International
Steel Group Inc. (formerly WLR Acquisition Corp.).
RECITALS
WHEREAS, Buyer and the LTV Companies entered into the Asset Purchase
Agreement, which was previously amended on April 11, 2002 and June 4, 2002; and
WHEREAS, the parties to the Asset Purchase Agreement desire to further
amend the Asset Purchase Agreement as set forth below.
NOW, THEREFORE, in consideration of the respective agreements herein
contained, and other good and valuable consideration the receipt and sufficiency
of which are acknowledged, the LTV Companies and Buyer hereby agree as follows:
ARTICLE I
1.1 Definitions. Capitalized terms used herein without definition
have the meanings ascribed thereto in the Asset Purchase Agreement.
ARTICLE II
2.1 Amendment of Article 10 of the Asset Purchase Agreement.
Article 10 of the Asset Purchase Agreement is hereby amended by adding a new
Section 10.14 at the end thereof as follows:
"Section 10.14 Environmental Financial Assurances.
(a) Buyer shall use its best efforts to obtain the
release from the applicable beneficiary as soon as practicable and in
no event later than August 2, 2002 (the "Release Deadline") of the
following letters of credit (together, the "Environmental Letters of
Credit"): (i) Letter of Credit No. AN00002 in the stated amount of
$10,339,570 issued by Abbey National Treasurer Services on behalf of
LTV in favor of the Ohio Environmental Protection Agency (the "Ohio
EPA") and (ii) Letter of Credit No. P219040 in the stated amount of
$1,804,681 issued by XX Xxxxxx Xxxxx on behalf of LTV in favor of the
Indiana Department of Environmental Management (the "IDEM"). Buyer
acknowledges that time is of the essence with respect to the Release
Deadline.
(b) Buyer will (i) reimburse LTV promptly upon demand for
its out-of-pocket expenses incurred by LTV in maintaining the Letters
of Credit (i.e., the fees charged by the issuing banks for maintaining
the Environmental Letters of Credit of approximately $928 per day in
the aggregate) between April 12, 2002 and the release of the Letters of
Credit and (ii) indemnify LTV with respect to any losses or claims it
may incur as a result of any drawing by the Ohio EPA or the IDEM under
the Environmental Letters of Credit.
(c) Buyer stipulates and acknowledges that the release of
the Environmental Letters of Credit is one of the Assumed Liabilities
referred to in Section 1.3(e).
(d) If (i) Buyer has not been able to obtain the release
of the Environmental Letter(s) of Credit by the Ohio EPA or the IDEM,
as applicable, on or prior to the Release Deadline, and (ii) Ohio EPA
and/or IDEM, as the case may be, has, prior to the Release Deadline,
provided LTV and ISG with written assurance that Ohio EPA or IDEM, as
the case may be, will promptly (and in any event within seven (7)
Business Days following the making of such deposit) release the
applicable Environmental Letter(s) of Credit upon the making of the Day
following the Release Deadline, Buyer shall pay to LTV as liquidated
damages (together with any amounts due pursuant to Section 10.14(b))
for breach of this Agreement, an amount of cash equal to the undrawn
stated amount of the applicable Environmental Letter of Credit (or such
lower amount as is required by Ohio EPA or IDEM in order to secure the
release of the applicable Environmental Letter of Credit), to be
deposited by LTV with such entity in order to secure the release of the
Environmental Letter(s) of Credit which has (have) not been released on
or before the Release Deadline. In the case of a payment by Buyer in
accordance with this Section 10.14(d), LTV shall deposit such payment
by Buyer in accordance with this Section 10.14(d), LTV shall deposit
such payment in the name of Buyer and/or its affiliates with the Ohio
EPA or the IDEM in a manner authorized by Ohio Administrative Code
Chapter 3745-29 or Chapter 329, Section 10-39 of the Indiana
Administrative Code, as the case may be, to obtain the release of the
applicable Environmental Letter of Credit.
(e) If (i) Buyer has not been able to obtain the release
of the Environmental Letter(s) of Credit, as applicable, by the Release
Deadline, and (ii) Ohio EPA and/or IDEM, as the case may be, has not,
prior to the Release Deadline, provided LTV and ISG with written
assurance that Ohio EPA or IDEM, as the case may be, will promptly (and
in any event within seven (7) Business Days following the making of
such deposit) release the applicable Environmental Letter(s) of Credit
upon the making of the deposit(s) described in Section 10.14(d), Buyer
shall pay to LTV as liquidated damages for breach of this Agreement an
amount of cash equal to 105% of the undrawn stated amount of the
Environmental Letter(s) of Credit which has (have) not been released
(in addition to any amounts due pursuant to Section 10.14(b)). LTV
shall deposit any such payment in LTV's Letter of Credit Account (as
defined in the Revolving Credit and Guaranty Agreement dated as of
March 20, 2002 among The LTV
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Corporation as borrower, the subsidiaries of the borrower named therein
as guarantors, and The Chase Manhattan Bank (n/k/a JPMorgan Chase
Bank), as agent, and Abbey National Treasury Services, plc, as
co-agent, as amended from time to time (the "Credit Agreement"), copies
of which have been furnished to Buyer) in order to cash collateralize
the applicable with this Section 10.14(e), and the Environmental
Letter(s) of Credit is subsequently released before it is drawn upon or
expires in accordance with its terms without being drawn upon, then LTV
shall return to Buyer the amount of cash paid by Buyer pursuant to this
Section 10.14(e) (and any interest earned thereon) with respect to such
Environmental Letter(s) of Credit upon receipt of such released
Environmental Letter(s) of Credit or expiration of such Environmental
Letter(s) of Credit, as the case may be. If Buyer makes a payment in
accordance with this Section 10.14(e) and the Environmental Letter(s)
of Credit is drawn upon in part, upon the earlier to occur of (A) the
expiration of such partially-drawn Environmental Letter(s) of Credit or
(B) release of such partially-drawn Environmental Letter(s) of Credit,
LTV shall return to Buyer the amount of cash then on deposit (or which
was previously on deposit, but had been released) to cash collateralize
such Environmental Letter(s) of Credit under the Credit Agreement (and
any interest earned therein) which is applicable to such Environmental
Letter(s) of Credit but has not been applied by the lenders under the
Credit Agreement to fund the drawn amount of such Environmental
Letter(s) of Credit.
(f) If the Environmental Letters of Credit are released
on or prior to the Release Deadline, Buyer shall have no liability with
respect to the Environmental Letters of Credit, other than as set forth
in Section 10.14(b).
(g) Provided that Buyer complies with its obligations set
forth in this Section 10.14, Buyer shall not be deemed to be in default
of its obligations under this Agreement with respect to the
Environmental Letters of Credit and the LTV Companies agree to refrain
through the Release Deadline from exercising any of their respective
rights and remedies under this Agreement or otherwise with respect to
Buyer's obligations under the Agreement (including, without limitation,
Section 1.3) regarding the Environmental Letters of Credit."
ARTICLE III
3.1 Full Force and Effect. Except as specifically amended or
modified hereby, the Asset Purchase Agreement remains in full force and effect
in accordance with its terms.
3.2 Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute the
same instrument.
[Signatures Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
INTERNATIONAL STEEL GROUP INC.
By: /s/ Xxxxx X. Pole
-----------------------------------
Name: Xxxxx X. Pole
Title: Vice President
LTV STEEL COMPANY, INC.
By: /s/ N. Xxxxx Xxxxxxx
-----------------------------------
Name: N. Xxxxx Xxxxxxx
Title: Vice President
RIVER TERMINAL RAILWAY COMPANY
By: /s/ /Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
CHICAGO SHORT LINE RAILWAY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
THE CUYAHOGA VALLEY RAILWAY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
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THE LTV CORPORATION
By: /s/ N. Xxxxx Xxxxxxx
-----------------------------------
Name: N. Xxxxx Xxxxxxx
Title: Vice President
LTV ELECTRO-GALVANIZING, INC.
By: /s/ N. Xxxxx Xxxxxxx
-----------------------------------
Name: N. Xxxxx Xxxxxxx
Title: Vice President
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