<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
SCHEDULE 13D
------------
Under the Securities Exchange Act of 1934
(AMENDMENT NO. 1)
MK RAIL CORPORATION
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
55305T102
(CUSIP Number)
William W. Chandler
CS First Boston, Inc.
Eleven Madison Avenue
New York, NY 10010
(212) 325-3498
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
NOVEMBER 22, 1996
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Check the following box if a fee is being paid with the statement [_]. (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
<PAGE>
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CUSIP NO. 55305T102 SCHEDULE 13D PAGE 2 OF 10 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 13-2853402
CS First Boston, Inc.
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
2 (a) [_]
(b) [X]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS
4
00
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
5 TO ITEMS 2(D) OR 2(E) [_]
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF
0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 1,466,177
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING
0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,466,177
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,466,177
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12
[_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
8.4%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON
14
HC
- ------------------------------------------------------------------------------
<PAGE>
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CUSIP NO. 55305T102 SCHEDULE 13D PAGE 3 OF 10 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 13-2972600
CS First Boston Securities Corporation
13-2972600
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
2 (a) [_]
(b) [X]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS
4
00
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
5 TO ITEMS 2(D) OR 2(E) [_]
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF
0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 0
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING
0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
0
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
0
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12
[_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
0%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON
14
CO
- ------------------------------------------------------------------------------
<PAGE>
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CUSIP NO. 55305T102 SCHEDULE 13D PAGE 4 OF 10 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 13-5659485
CS First Boston Corporation
13-5659485
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
2 (a) [_]
(b) [X]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS
4
00
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
5 TO ITEMS 2(D) or 2(E) [_]
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF
0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 1,466,177
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING
0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,466,177
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,466,177
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12
[_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
8.4%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON
14
CO
- ------------------------------------------------------------------------------
<PAGE>
CUSIP No. 55305T102 Schedule 13D Page 5 of 10 Pages
AMENDMENT NO. 1 TO SCHEDULE 13D
This Amendment No. 1 to the Schedule 13D filed by CS First Boston
Securities Corporation ("CSFBSC") and CS First Boston, Inc. ("CSFBI") on October
31, 1996 (the "Schedule 13D"), relates to the common stock, $0.01 par value (the
"Common Stock") of MK Rail Corporation, a Delaware corporation ("MK Rail").
Capitalized terms used herein without definition shall have the meanings set
forth in the Schedule 13D.
This Amendment No. 1 reflects the disposition of the Nomura Proceeds
pursuant to the Nomura Agreement. It also reflects the transfer in the ordinary
course of business by CSFBSC to CS First Boston Corporation, a Delaware
corporation ("CSFBC"), of the beneficial ownership of its remaining shares of
Common Stock after the disposition of the Nomura Proceeds (the "CSFBSC
Holdings").
Unless this Amendment No. 1 otherwise indicates that an Item or a portion
thereof is restated, the following amendments represent additions to the
information previously reported.
ITEM 2. IDENTITY AND BACKGROUND
The first paragraph of Item 2(a) is hereby amended, supplemented and restated as
follows:
(a) This Amendment No. 1 to Schedule 13D is being filed by (a) CSFBSC, a
wholly-owned subsidiary of CSFBI, (b) CSFBC, as the beneficial owner of
1,466,177 shares of Common Stock, and (c) CSFBI, which may be deemed the
beneficial owner of 1,466,177 shares of Common Stock by virtue of its ownership
of 100 percent of the outstanding capital stock of CSFBC. CSFBSC, CSFBC and
CSFBI are collectively referred to herein as the "Reporting Persons."
The second paragraph of Item 2(a) is hereby amended and supplemented as follows:
The principal business of CSFBC is investment banking and registered
broker-dealer activities.
Item 2(b) is hereby amended, supplemented and restated as follows:
(b) The principal business address of each of CSFBSC, CSFBC and CSFBI is
Eleven Madison Avenue, New York, New York 10010.
Item 2(c) and Item 2(f) are hereby amended and supplemented as follows:
(c), (f) The name, citizenship, residence or business address and present
principal occupation or employment, and the name, principal business and address
of any corporation or other organization in which such employment is conducted,
of each executive officer and director of CSFBC is set forth on Schedule II
hereto, which Schedule is hereby incorporated herein by reference in its
entirety.
Item 2(d) and Item 2(e) are hereby amended and supplemented as follows:
(d)-(e) Neither CSFBC nor to the knowledge of the Reporting Persons any of
its executive officers and directors listed on Schedule II hereto, has, during
the last five years, (i) been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (ii) been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 as reported in the Schedule 13D is hereby corrected as follows:
<PAGE>
CUSIP No. 55305T102 Schedule 13D Page 6 of 10 Pages
The Nomura Proceeds total 473,925 shares of Common Stock.
Item 3 is hereby amended and supplemented as follows:
On November 26, 1996, in the ordinary course of business, CSFBSC
transferred to CSFBC, both of which are wholly-owned subsidiaries of CSFBI,
beneficial ownership of 1,411,174 shares of Common Stock, constituting the
CSFBSC Holdings.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 is hereby amended and supplemented as follows:
CSFBC obtained beneficial ownership of 1,411,174 shares of Common Stock in
the manner described in Item 3 as amended and supplemented above. Except as
described below, CSFBC has no plans or proposals that would result in (1) the
acquisition by any person of additional securities of MK Rail or the disposition
of securities of MK Rail; (2) an extraordinary corporate transaction, such as a
merger, reorganization or liquidation of MK Rail or any of its subsidiaries; (3)
a sale or transfer of a material amount of assets of MK Rail or any of its
subsidiaries; (4) any change in the present board of directors or management of
MK Rail, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board of directors of MK
Rail; (5) any material change in the present capitalization or dividend policy
of MK Rail; (6) any other material change in the business or corporate structure
of MK Rail; (7) changes in the charter, by-laws or instruments corresponding
thereto of MK Rail, or other actions which may impede the acquisition of control
of MK Rail by any person; (8) any class of securities of MK Rail being delisted
from a national securities exchange or ceasing to be authorized to be quoted in
an inter-dealer quotation system of a registered national securities
association; (9) any class of equity securities of MK Rail becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or
(10) any action similar to any of those enumerated above. CSFBC, however,
reserves the right to change its plans or intentions at any time and to take any
and all actions that it deems appropriate to maximize the value of its
investment including, among other things, from time to time increasing or
decreasing the number of shares of Common Stock by acquiring additional shares,
or by disposing of all or a portion of the shares of Common Stock in open market
or privately negotiated transactions or otherwise, depending on existing market
conditions and other considerations discussed below. CSFBC intends to review its
investment in MK Rail on a continuing basis and, depending upon the price and
availability of Common Stock, subsequent developments affecting MK Rail, the
general business and future prospects of MK Rail, other investment and business
opportunities available to CSFBC, general stock market and economic conditions,
tax considerations and other factors considered relevant, may decide at any time
to increase or decrease the size of its investment in MK Rail.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5(a) and Item 5(b) are hereby amended, supplemented and restated as
follows:
(a) As of the filing date, CSFBSC did not beneficially own any shares of
Common Stock.
As of the filing date, CSFBC beneficially owned 1,466,177 shares of Common
Stock, which constitute 8.4% of the shares of Common Stock outstanding as
reported in MK Rail's most recent 10-Q.
CSFBI, through its 100 percent ownership of the outstanding capital stock
of CSFBC, may be deemed to beneficially own 1,466,177 shares of Common Stock,
which constitute 8.4% of the shares of Common Stock outstanding as reported in
MK Rail's most recent 10-Q.
(b) CSFBC, through its ownership of 1,466,177 shares of Common Stock, and
CSFBI, through its ownership of 100 percent of the outstanding capital stock of
CSFBC, may be deemed to share the power to vote or direct the vote and dispose
or direct the disposition of 1,466,177 shares of Common Stock.
Item 5(c) is hereby amended and supplemented as follows:
<PAGE>
CUSIP No. 55305T102 Schedule 13D Page 7 of 10 Pages
(c) On November 22, 1996, CSFBSC transferred beneficial ownership of
473,925 shares of Common Stock (which constitute the Nomura Proceeds) to Nomura
pursuant to the Nomura Agreement , as further evidenced by an Assignment
Agreement dated September 14, 1996 (the "Assignment Agreement"), a copy of which
is attached hereto as Exhibit 4, and a related pricing letter dated November 22,
1996 (the "Pricing Letter"), a copy of which is attached hereto as Exhibit 5
(collectively, the "Agreement"). Under the terms of the Agreement, CSFBSC
transferred the rights it received under the Plan as a result of purchases of
debt owed by ARPC made pursuant to the Nomura Agreement, which rights included
the Nomura Proceeds, 963,916 shares of the common stock, $0.01 par value, of
Morrison Knudsen Corporation ("MKC") and 71,808 shares of the preferred stock,
$0.01 par value, of MKC, for a net purchase price of $11,519,675.44.
On November 26, 1996, in the ordinary course of business, CSFBSC
transferred to CSFBC, both of which are wholly-owned subsidiaries of CSFBI,
beneficial ownership of 1,411,174 shares of Common Stock, constituting the
CSFBSC Holdings.
Other than the transactions described above, since the filing of the
Schedule 13D CSFBC has effectuated one transaction in the Common Stock as a
market maker in the ordinary course of business, buying 3 shares at $8.25 per
share on December 2, 1996.
Except as described above, none of the Reporting Persons has effected any
transactions relating to the Common Stock since the filing of the Schedule 13D.
To the knowledge of the Reporting Persons, none of the executive officers or
directors of CSFBI, CSFBSC or CSFBC listed in Schedule I to the Schedule 13D or
Schedule II hereto has effected any transaction relating to the Common Stock
since the filing of the Schedule 13D.
Item 5(e) is hereby amended, supplemented and restated as follows:
(e) CSFBSC ceased to be a beneficial owner of more than five percent of the
Common Stock on November 26, 1996.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Item 6 is hereby amended and supplemented as follows:
Except as described in Item 6 of the Schedule 13D and Item 5(c) as amended
and supplemented in this Amendment No. 1, the Reporting Persons do not have any
contract, arrangement, understanding or relationship with any other person with
respect to any security of MK Rail.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 is hereby amended and supplemented as follows:
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<C> <S>
4 The Assignment Agreement by and between CSFBSC and Nomura, dated September 14, 1996.
5 The Pricing Letter by and between CSFBSC and Nomura, dated November 22, 1996.
</TABLE>
<PAGE>
CUSIP No. 55305T102 Schedule 13D Page 8 of 10 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment is true, complete and
correct.
Dated: December 13, 1996
CS FIRST BOSTON, INC.
By: /s/ Agnes F. Reicke
Name: Agnes F. Reicke
Title: Deputy General Counsel,
Director and Secretary
<PAGE>
CUSIP No. 55305T102 Schedule 13D Page 9 of 10 Pages
The Schedule 13D is hereby amended and supplemented as follows:
SCHEDULE II
CERTAIN INFORMATION CONCERNING THE DIRECTORS AND
EXECUTIVE OFFICERS OF
CS FIRST BOSTON CORPORATION
Except where indicated, each of the persons named below is a citizen of the
United States of America. Unless otherwise indicated, for each person whose
principal employment is with CSFBI or CSFBC, the principal business and address
of such person's employer is described under Item 2 as amended, supplemented and
restated above. None of the persons named below is a record owner of any Common
Stock.
<TABLE>
<CAPTION>
Employment; Business Address;
and Principal Business of
Name Employer
- ---- --------------------------------
<S> <C>
Directors
- ---------
John M. Hennessy CEO, Director and Chairman
(Chairman) of the Executive
Board of CSFBI
Allen D. Wheat President, Chief Operating
(CEO and President) Officer, of CSFBI
Richard E. Thornburgh Chief Financial and Administrative
(Chief Administrative Officer) Officer, of CSFBI
Executive Officers
- ------------------
John M. Hennessy CEO, Director and Chairman of the Executive
(Chairman) Board, of CSFBI
Allen D. Wheat President, Chief Operating Officer and Chairman
(CEO and President) of the Operating Committee, of CSFBI
Richard E. Thornburgh Chief Financial and Administrative Officer,
(Chief Administrative Officer) of CSFBI
David C. Mulford Vice Chairman, Investment Banking, of CSFBI
(Vice Chairman)
</TABLE>
<PAGE>
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CUSIP No. 55305T102 Schedule 13D Page 10 of 10 Pages
- ------------------- -------------------
<TABLE>
<CAPTION>
<S> <C>
William P. Bowden, Jr. Managing Director and General Counsel, of CSFBI
(General Counsel)
Agnes F. Reicke Deputy General Counsel, Director and Secretary,
(Secretary) of CSFBI
(Citizen of Switzerland)
Lori M. Russo Vice President and Assistant Secretary, of CSFBI
(Assistant Secretary)
Lewis H. Wirshba Managing Director and Treasurer, of CSFBI
(Treasurer)
Carlos Onis Managing Director and Controller, of CSFBI
(Acting Chief Financial Officer and
Controller)
</TABLE>
<PAGE>
EXHIBIT NO. 4
-------------
EXECUTION COPY
ASSIGNMENT AGREEMENT
--------------------
ASSIGNMENT AGREEMENT, dated as of September 14, 1996 by and between CS
First Boston Securities Corporation (the "Assignor") and Nomura Holding America,
Inc. (the "Assignee").
W I T N E S S E T H:
-------------------
Reference is made to that Certain Revolving Credit Agreement dated as
of October 10, 1995 among Bank of America National Trust and Savings
Association, as agent (the "Agent"), the other financial institutions party
thereto (including Assignor) (collectively, the "Banks"), and American Passenger
Rail Company, L.L.C., a Delaware limited liability company (the "Debtor"), as
amended pursuant to the First Amendment to Revolving Credit Agreement dated as
of December 14, 1995, the Second Amendment to Revolving Credit Agreement dated
April 2, 1996, the Third Amendment to Revolving Credit Agreement dated as of
June 24, 1996, the Fourth Amendment to Revolving Credit Agreement dated as of
August 5, 1996 (the "Fourth Amendment") and the Fifth Amendment to Revolving
Credit Agreement dated as of September 12, 1996 (the "Fifth Amendment") and
waivers to Revolving Credit Agreement as of each of November 29, 1995, December
8, 1995, December 11, 1995, December 20, 1995, December 27, 1995, January 2,
1996, January 31, 1996, February 23, 1996, March 20, 1996, March 22, 1996, March
28, 1996, April 10, 1996 and April 18, 1996 (the "Credit Agreement").
Credit Suisse and Swiss Bank Corporation, London Branch are parties to
the Assignment Agreement dated as of July 9, 1996 (the "Swiss Bank Agreement"),
pursuant to which Credit Suisse purchased from Swiss Bank the Transferred Rights
(as defined in the Swiss Bank Agreement), on the terms and subject to the
conditions set forth therein.
Assignor is a party to the Assignment Agreement dated as of July 9,
1996 (the "First CSFB Purchase Agreement") between CSFB and Credit Suisse,
pursuant to which CSFB purchased from Credit Suisse the Assigned Rights (as
defined in the First CSFB Purchase Agreement), on the terms and subject to the
conditions set forth therein.
CSFB is a party to the Purchase and Sale Agreement dated as of
September 24, 1996 (the "Second CSFB Purchase Agreement"), between CSFB and
Chase Securities Inc., as agent for the Chase Manhattan Bank ("Chase"), pursuant
to which CSFB purchased from Chase the Assigned Rights (as defined in the Second
CSFB Purchase Agreement), on the terms and subject to the conditions set forth
therein.
<PAGE>
EXHIBIT NO. 4
-------------
WHEREAS, the Assignor desires to sell to the Assignee, and the
Assignee desires to purchase from the Assignor, Assignor's right, title and
interest in, to and under the Transferred Rights (as defined below);
NOW, THEREFORE, in consideration of the premises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings stated in the First CSFB Assignment Agreement.
The following capitalized terms shall have the meanings set forth below:
"Assumed Obligations" shall mean the Pro Rata Share of all of
Assignor's obligations, duties, liabilities and indemnities arising or accruing
under or in connection with (i) the Transfer Documents and (ii) the Credit
Documents (to the extent related to the Transferred Rights or assumed under the
Transfer Documents). Assumed Obligations do not include the Excluded
Obligations.
"Credit Documents" shall mean the Credit Agreement and all other
documents and agreements executed and delivered in connection therewith.
"Excluded Obligations" shall mean (i) obligations which arise from
Assignor's breach of any of its representations, warranties or covenants
contained in the Transfer Documents and the Credit Documents; and (ii)
obligations which arise from Assignor's gross negligence or willful misconduct.
"Proceeds" shall mean all proceeds of any kind and nature of the
Transferred Rights.
"Pro Rata Share" shall mean (i) 50% of the First Assigned Interest,
the Second Assigned Interest, the Third Assigned Interest and the Fourth
Assigned Interest, each as defined in the Swiss Bank Agreement, and to the
extent related thereto, the First CSFB Assignment Agreement; (ii) 50% of the
Assigned Rights (as defined in the Second CSFB Purchase Agreement) and the
Second CSFB Purchase Agreement; and (iii) 100% of the Fifth Assigned Interest
and the Sixth Assigned Interest, each as defined in the Swiss Bank Agreement,
and to the extent related thereto, the First CSFB Purchase Agreement.
"Transfer Documents" shall mean (i) the First CSFB Purchase Agreement
and the Assignment and Assumption Agreement and the Assignment and Acceptance
Agreement executed in connection
2
<PAGE>
EXHIBIT NO. 4
-------------
therewith; and (ii) the Second CSFB Purchase Agreement and the Assignment and
Assumption Agreement and the Assignment and Acceptance Agreement executed in
connection therewith.
"Transferred Rights" shall mean the Pro Rata Share of Assignor's
right, title and interest, claims and causes of action in, to and under the
Transfer Documents and, to the extent of the Pro Rata Share, of the Transfer
Documents, the Credit Documents and any proceeds of any kind from any of the
foregoing.
2. Assignment; Assumption: Effective upon receipt of the payment
referred to in Section 3 below (the "Effective Time"), Assignor hereby
irrevocably sells, transfers, assigns, grants and conveys to the Assignee the
Transferred Rights. This assignment is made without recourse, representation or
warranty, except as expressly set forth in this Agreement. Subject to the
occurrence of the Effective Time, Assignee shall assume and hereby agrees to
duly and timely perform the Assumed Obligations.
3. Payment. In consideration of the sale and assignment contemplated
herein, the Assignee shall pay to the Assignor (in immediately available funds
by wire transfer to the Assignor's account set forth on the signature page
hereof) the purchase price set forth in that certain letter agreement dated the
date hereof (the "Pricing Letter") between the Assignor and the Assignee.
4. Conditions to Closing. Assignee's obligations in Sections 2 and 3
are subject to the Assignor's representations, warranties and covenants being
true and complied with in all material respects. Assignor's obligations in
Section 2 are subject to Assignee's representations, warranties and covenants
being true and complied with in all material respects and Assignee making the
payment as set forth in Section 3 above.
5. Assignor's Representations. Assignor hereby represents and
warrants to the Assignee as of the Effective Time (except for the representation
contained in paragraph 5(g) below which is made as of the date hereof) that:
(a) it has made no prior assignment, sale or participation of the
Transferred Rights or any portion thereof or interest therein;
(b) Assignor is duly organized in the jurisdiction of its
organization and has full power and authority to sell and assign the Transferred
Rights and to enter into and perform this Agreement, and such transaction and
this Agreement, the performance of Assignor's obligations under this Agreement
and the documents to be executed and delivered by Seller in connection herewith
(i) have
3
<PAGE>
EXHIBIT NO. 4
-------------
been duly authorized by Assignor, (ii) are legal, valid and binding and
enforceable against Assignor in accordance with their terms, and (iii) does not
breach or conflict with, or cause a default under the charter or bylaws of
Assignor or any law, order or Agreement by which Assignor is bound;
(c) There are no fees, commissions or compensation payable by
Assignee to any party engaged or retained by, through or on behalf of Assignor
in connection with the transactions contemplated hereby;
(d) Except for those consents, notices, filings, approvals or
authorizations already obtained or received, no consents, notices, filings,
approvals or authorizations are required to be made to or with any person,
entity or government body by Assignor for the consummation of the transactions
contemplated by this Agreement;
(e) No proceedings are pending against Assignor or to Assignor's
actual knowledge, without independent investigation, threatened against Assignor
before any court, arbitrator or administrative or governmental body which, in
the aggregate, would have a material adverse effect on the Transferred Rights.
(f) To the extent so received (i) by Credit Suisse from Swiss Bank
under the Swiss Bank Agreement with respect to that portion of the Transferred
Rights acquired from Credit Suisse by Assignor and (ii) by Assignor from Chase
under the Second CSFB Purchase Agreement with respect to that portion of the
Transferred Rights acquired from Chase by Assignor, Assignor is the sole legal
and beneficial owner of the Transferred Rights and has good title thereto, free
and clear of all liens, claims and encumbrances of any kind and, to such extent,
will transfer the Transferred Rights to Assignee free and clear of any liens or
encumbrances of any kind;
(g) To the extent so received by (i) Credit Suisse from Swiss Bank
under the Swiss Bank Agreement with respect to that portion of the Transferred
Rights acquired from Credit Suisse by Assignor and (ii) by Assignor from Chase
under the Second CSFB Purchase Agreement with respect to that portion of the
Transferred Rights acquired from Chase by Assignor, the total outstanding
principal amount with respect to the Transferred Rights is as reflected on
Schedule B hereto;
(h) Neither Assignor nor Credit Suisse has engaged in any act,
conduct or omission that would result in Assignee receiving proportionately less
payments or distributions or less
4
<PAGE>
EXHIBIT NO. 4
-------------
favorable treatment than other Banks holding Loans or similar claims under the
Credit Agreement or the Override Agreement;
(i) Assignor is a sophisticated seller with respect to the Transferred
Rights, has adequate information concerning the business and financial condition
of the Debtor to make an informed decision regarding the sale of the Transferred
Rights, and has independently, without reliance upon Assignee and based on such
information as it deemed appropriate, made its own analysis and decision to
enter into this Agreement;
(j) Assignor has provided Assignee with complete and accurate copies
of the Transfer Documents;
(k) Assignor is not and has never been an "insider" as that term is
defined in Section 101(31) of the Bankruptcy Code with respect to the Debtor or
any of its affiliates;
(l) Assignor has not breached any of its representations and
warranties, covenants or other agreements in the Transfer Documents or the
Credit Documents;
(m) Assignor acknowledges that Assignee may possess material non-
public information not known to Assignor regarding or relating to the Debtor or
the Transferred Rights (the "Assignor Excluded Information") and Assignor
acknowledges that it has not requested such information and agrees that Assignee
shall have no liability whatsoever (and Assignor hereby waives and releases all
claims which it would otherwise have) with respect to the non-disclosure of the
Assignor Excluded Information, either before or after the date hereof;
(n) None of the Assignee Excluded Information (as defined in paragraph
6(h) below) contradicts or is inconsistent with any representation or warranty
made by Assignor in this Agreement;
(o) Other than the payments described on Schedule C hereto, Assignor
has not received any payments or transfers at any time from or on account of the
Debtor in respect of the Transferred Rights; and
(p) Assignor does not hold any funds or property of or presently owe
any amounts or property to the Debtor or its affiliates and Assignor has paid
all amounts due and owing to the Debtor and its affiliates.
Assignor (i) makes no representation or warranty and assumes no responsibility
with respect to any statement, warranties, or
5
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EXHIBIT NO. 4
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representations made by any person or entity other than Assignor in or in
connection with the Transfer Documents, the Credit Documents or any of the other
instrument or document furnished pursuant thereto or the execution, legality,
validity or enforceability (with respect to any person or entity other than
Assignor) of the Credit Documents or any other instrument or document furnished
pursuant thereto, and (ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition, creditworthiness,
properties, affairs, status or nature of the Debtor or any of its affiliates or
the performance or observance by the Debtor or any of such affiliates of their
respective obligations under the Transfer Documents, the Credit Documents or any
such other instrument or document.
6. Assignee's Representations. The Assignee hereby represents and
warrants to the Assignor as of the Effective Time that:
(a) Assignee has full power and authority to enter into and perform
this Agreement, and such transaction and this Agreement and the documents to be
executed and delivered in connection herewith (i) have been duly authorized by
Assignee, (ii) are legal, valid and binding and enforceable against Assignee in
accordance with their terms and (iii) are not in contravention of any law, order
or Agreement by which Assignee is bound;
(b) Except for those consents, notices, filings, approvals or
authorizations already obtained or received, no consents, notices, filings,
approvals or authorizations are required to be made to or with any person,
entity or governmental body by Assignee for the consummation of the transactions
contemplated by this Agreement;
(c) No proceedings are pending or to Assignee's actual knowledge,
without independent investigation, threatened against Assignee before any court,
arbitrator or administrative or governmental body which, in the aggregate, would
have a material adverse effect on any action taken or to be taken by Assignee
under this Agreement;
(d) There are no fees, commissions or compensation payable by Assignor
to any party engaged or retained by, through or on behalf of Assignee in
connection with the transactions contemplated hereby;
(e) Assignee agrees and acknowledges that (A) it is a sophisticated
buyer with respect to the Transferred Rights, has adequate information
concerning the business and financial condition of the Debtor to make an
informed decision regarding the
6
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EXHIBIT NO. 4
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purchase of the Transferred Rights, and has independently, without reliance upon
Assignor (except that Assignee has relied upon the representations and
warranties made herein by Assignee) and based on such information as it deemed
appropriate, made its own analysis and decision to enter into this Agreement;
(B) it has made its credit determination and analysis based upon such
information as it deemed sufficient to enter into this Agreement and not based
on any statements or representations by Assignor except for the representations
expressly set forth herein; (C) it is purchasing the Transferred Rights not with
a view to or for resale in connection with, any distribution or public offering
of all or any part thereof or of any interest therein in a manner which would
violate applicable securities law; (D) it is able to bear the economic risk
associated with the purchase of the Transferred Rights; (E) it has such
knowledge and experience and has made investments of a similar nature so as to
be aware of the risks and uncertainties inherent in purchases of the type
contemplated herein; (F) except as provided in this Agreement, it will not rely
upon Assignor to furnish or make available any documents or other information
regarding the credit, affairs, financial condition or business of, or any other
matter concerning the Debtor or any of its affiliates; (G) it is not an agent
for Assignor; (H) it is an "accredited investor" as defined in Rule 501(a) of
Regulation D under the Securities Act of 1933, as amended; and (I) Assignor has
not given any investment advice, credit information or rendered any opinion as
to whether the purchase of the Transferred Rights is prudent; (J) it is not
affiliated, directly or indirectly, with the Debtor or any of its subsidiaries,
affiliates or employees; and (K) it is not a party to any understanding or
agreement (other than this Agreement) with respect to the holding, voting,
acquisition or disposition of the Transferred Rights or any portion thereof;
(f) Assignee is not purchasing the Transferred Rights or any interest
therein for or on behalf of one or more employee benefit plans, or with funds
which directly or indirectly constitute "plan assets" as defined in the Employee
Retirement Income Security Act of 1974, as amended;
(g) Assignee acknowledges that it has been provided an opportunity to
obtain copies of such other documents and information as it has deemed
appropriate in making its own evaluation of the Transferred Rights and Assignee
is assuming all risk with respect to the completeness, accuracy or sufficiency
of such documents and information. Assignee has received a copy of the Joint
Plan of Reorganization of Morrison Knudsen Corporation and certain subsidiaries
under Chapter 11 of the Bankruptcy Code (the "Plan") and the related Second
Amended Disclosure Statement pursuant to Section 1125 of the Bankruptcy Code
with respect to Joint Plan of Reorganization of Morrison Knudsen Corporation,
the
7
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EXHIBIT NO. 4
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Debtor and certain subsidiaries under Chapter 11 of the Bankruptcy Code.
(h) Assignee acknowledges that Assignor may possess material non-
public information not known to Assignee regarding or relating to the Debtor or
the Transferred Rights (the "Assignee Excluded Information") and Assignee
acknowledges that it has not requested such information and agrees that Assignor
shall have no liability whatsoever (and Assignee hereby waives and releases all
claims which it would otherwise have) with resect to the ono-disclosure of the
Assignee Excluded Information, either before or after the date hereof;
(i) None of the Assignor Excluded Information (as defined in paragraph
5(m) above) contradicts or is inconsistent with any representation or warranty
made by Assignee in this Agreement; and
(j) Assignee acknowledges that on June 25, 1996, the Debtor filed a
petition for relief under Chapter 11 of the Bankruptcy code in the United States
Bankruptcy court for the District of Delaware and that on August 26, 1996, the
Bankruptcy Court confirmed the Plan.
7. Acknowledgments. Assignor and Assignee acknowledge and represent
and warrant to each other that (a) neither party has made any representation or
warranty, whether express or implied, of any kind or character except as
expressly set forth in this Agreement; and (b) the assignment and transfer of
the Transferred Rights by Assignor to Assignee is irrevocable, and Assignor
shall have no recourse to the Transferred Rights.
8. Payment and Delivery Instructions. If Assignor receives any
proceeds of the Transferred Rights, Assignor shall accept and hold the same on
behalf of and for the sole benefit of Assignee, and except to the extent
prohibited under any applicable law, rule, or order Assignor shall (a) promptly
after Assignor's receipt thereof pay or deliver the same to Assignee (free of
any withholding, set-off or deduction of any kind) in the same form received,
with the endorsement of Assignor, without recourse, when necessary or
appropriate, or (b) if instructed by Assignee, deliver securities included in
such proceeds to the applicable transfer agent therefor. Assignor shall have no
legal, equitable or beneficial interest in the Proceeds.
9. Voting and Instructions. From and after the Effective Time, to the
extent that voting and other rights and remedies are divisible with respect to
the Transfer Documents and the Transferred Rights, then as between Assignor and
Assignee,
8
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EXHIBIT NO. 4
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Assignee shall have sole authority to exercise such voting and other rights and
remedies. In the event that such voting and other rights and remedies are not
divisible, to the extent that Assignor has the right to vote, Assignor shall act
or refrain from acting in respect of any vote or other right or remedy in
accordance with the written directions (if timely given) of holders (including
Assignor, if applicable) owning or holding interests representing at least 51%
of the total amount of the Transferred Rights plus all other interests in the
Credit Agreement and in Funded Debt (as defined in the Override Agreement) held
by Assignor at that time (the "Majority Holders"). Assignee acknowledges that
Assignee shall be bound by any decisions of the Majority Holders to take or not
to take an action.
10. Further Assignments. Assignee shall have the right to sell,
assign, grant participations and subparticipations in, and otherwise transfer
(each a "transfer") the Transferred Rights and Assignee's rights under this
Agreement to any person or entity (each direct or indirect transferee is called
a "transferee") without the consent of Assignor; provided, that unless Assignor
consents (which consent shall not be unreasonably withheld) to such transferee
and such transferee assumes all of Assignee's obligations under this Agreement,
then the obligations of Assignee and Assignor under this Agreement shall remain
in full force and effect.
11. Indemnities.
(a) By Assignor. Assignor agrees to indemnify, defend and hold the
Assignee and its officer, directors, employees, agents, partners, trustees and
controlling persons or entity and their respective successors and assigns
(collectively, the "Assignee Indemnitees") harmless from and against any and all
expenses, losses, claims, damages, suits, proceedings and liabilities,
including, but not limited to, attorneys' fees and expenses (collectively,
"Liabilities") which are incurred by the Assignee Indemnitees or any of them,
caused by, or in any way resulting from or relating to (i) Assignor's breach of
any of its representation, warranties, agreements or covenants set forth in this
Agreement or (ii) the Excluded Obligations.
(a) By Assignee. Assignee agrees to indemnify, defend and hold the
Assignee and its officer, directors, employees, agents, partners, trustees and
controlling persons or entity and their respective successors and assigns
(collectively, the "Assignor Indemnitees") harmless from and against any and all
Liabilities which are incurred by the Assignor Indemnitees or any of them,
caused by, or in any way resulting from or relating to (i) Assignee's breach of
any of its representations, warranties,
9
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EXHIBIT NO. 4
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agreements or covenants set forth in this Agreement; (ii) the Assumed
Obligations; (iii) any further sale, assignment, participation, subparticipation
or transfer of the Transferred Rights, this Agreement or any portion thereof in
violation of any Transfer Document, Credit Document or applicable law, rule,
order, judgment or regulation; or (iv) Assignor following any written
instruction or direction of Assignee, including, without limitation,
instructions given pursuant to the first sentence of Section 9 above, but
excluding any instructions or directions given pursuant to the remainder of
Section 9 above.
12. Costs and Fees. Assignee and Assignor shall each bear their
respective costs of negotiating and preparing the documents for the transaction
contemplated hereby, plus one-half of the $3,500 transfer fee payable to the
Agent in connection with the sale hereunder.
13. Further Assurances. Each of the parties hereto agrees, at its own
cost and expense, to execute and deliver, or to cause to be executed and
delivered, all such instruments (including all necessary endorsements) and to
take all such action as the other party may reasonably request in order to
effectuate the intent and purposes of, and to carry out the terms of this
Agreement.
14. Integration. This Agreement and the Pricing Letter constitute the
complete agreement of the parties hereto with respect to the subject matters
referred to herein and supersede all prior or contemporaneous negotiations,
promises, covenants, agreements or representations of every nature whatsoever
with respect thereto, all of which have become merged and finally integrated
therein. This Agreement cannot be amended, modified or supplemented except by an
instrument in writing executed by both parties hereto.
15. Notices, Payments and Deliveries. Notices shall be given by
telecopy, certified or registered mail or personally or by courier at the
addresses set forth on Schedule A. Payments and deliveries of proceeds of the
Transferred Rights shall be made as set forth an Schedule A.
16. Miscellaneous. The terms of this Agreement shall be binding upon
and shall inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns. All representations and warranties made
herein shall survive the execution and delivery of this Agreement. This
Agreement may be executed in counterparts, each of which when so executed shall
be an original, but all such counterparts shall together constitute but one and
the same instrument. This Agreement shall be governed
10
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EXHIBIT NO. 4
-------------
by and construed in accordance with the laws of the State of New York without
regard to any conflicts of laws provisions thereof. Each party to this Agreement
hereby irrevocably consents to the jurisdiction of the United States District
Court for the Southern District of New York and the courts of the State of New
York located in the State and City of New York in any action to enforce,
interpret or construe any provision of this Agreement or of any other Agreement
or document delivered in connection with this Agreement, and also hereby
irrevocably waives any defense of improper venue, forum non coveniens or lack of
personal jurisdiction to any such action brought in those Courts. Each party
further irrevocably agrees that any action to enforce, interpret or construe any
provision of this Agreement will be brought only in one of those Courts.
17. Conflict. If the terms of this Agreement are inconsistent or
conflict with the terms of the Pricing Letter, the terms of the Pricing Letter
shall, as between Assignor and Assignee, govern and control.
18. Confidentiality. Each party agrees that except (i) as may be
compelled by legal process, by an order, judgment or decree or a court or other
governmental authority of competent jurisdiction, or (ii) disclosures to its own
employees or representatives or (iii) disclosures made in connection with
enforcing its rights hereunder, it shall not disclose to any person or entity
the terms or conditions of this Agreement or any document executed or delivered
in connection herewith, except that Assignee may disclose this Agreement (but
not the purchase rate or purchase price) to any prospective purchaser or
transferee of the Transferred Rights. Assignee agrees to be bound by (and agrees
to cause each of its transferees or participants to be bound by) the
confidentiality provisions of the Credit Documents and the Transfer Documents.
19. Relationship of Parties. The relationship between Assignor and
Assignee shall be that of Assignor and purchaser. Notwithstanding anything to
the contrary contained herein, Assignor shall not be deemed to have any
fiduciary obligations to Assignee. This Agreement shall not be construed to
create a partnership, joint venture or debtor-creditor relationship between the
parties hereto.
20. Telecopiers. Transmission by telecopier of an executed
counterpart of this Agreement shall be deemed to constitute due and sufficient
delivery of such counterpart, provided that the parties hereby agree to deliver
to each other an original of such counterpart promptly after delivery of the
facsimile.
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EXHIBIT NO. 4
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21. Subrogation. To the extent Assignee is entitled to any remedy
under this Agreement against Assignor and Assignee actually recovers on account
of such remedy from Assignor, then Assignor shall be subrogated to Assignee's
rights against Credit Suisse and Chase with respect thereto and Assignee shall
assign such rights to Assignor.
* * * *
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EXHIBIT NO. 4
-------------
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first stated above.
ASSIGNOR:
--------
CS FIRST BOSTON SECURITIES CORPORATION
By: /s/ David J. Maitlin
------------------------
Name: David J. Maitlin
Title: Managing Director
ASSIGNEE:
--------
NOMURA HOLDING AMERICA, INC.
By: /s/ Dennis Dolan
--------------------------
Name: Dennis Dolan
Title: Managing Director
13
<PAGE>
EXHIBIT NO. 4
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SCHEDULE A
----------
PAYMENT AND DELIVERY INSTRUCTIONS
---------------------------------
To Assignor:
Notices and Deliveries:
----------------------
CS First Boston Corporation
55 East 52nd Street, 6th Floor
New York, New York 10055
Attn: Stacey Hermann
Telephone: (212) 909-2019
Fax: (212) 479-0152
with a copy to:
--------------
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attn: James A. Stempel
Telephone: (312) 861-2440
Fax: (312) 861-2200
Wire Transfers:
--------------
Bankers Trust Company
ABA #021001033
Account # 01001355
CS First Boston
Attn: Adrianne Faranda, CSFB
(212) 322-1291
Ref: American Passenger
1
<PAGE>
EXHIBIT NO. 4
-------------
To Assignee:
- -----------
Payment Instructions:
--------------------
Chase Manhattan Bank, NYC
ABA #021-000-021
Account Name: Nomura Holding America, Inc.
Account # 400470888
Reference: American Passenger Rail
Notices and Deliveries:
----------------------
Nomura Holding America, Inc.
2 World Financial Center
Building B
17th Floor
New York, New York 10281
Attention: Thomas Fuller
Telephone: (212) 667-1964
Fax: (212) 667-1708
With a copy to:
--------------
Richard Spears Kibbe & Orbe
One Chase Manhattan Plaza
New York, New York 10005-1413
Attn: Larry G. Halperin
Telephone: (212) 530-1870
Fax: (212) 530-1801
2
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EXHIBIT NO. 4
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SCHEDULE B
----------
<TABLE>
<CAPTION>
<S> <C>
Total Outstanding Revolving Loan Commitment: $ 9,921,052.74
Letters of Credit Funded: $ 5,958,661.74
--------------
TOTAL $15,879,714.48
==============
</TABLE>
3
<PAGE>
EXHIBIT NO. 5
-------------
CS First Boston
CS First Boston Corporation 55 East 52nd Street
New York, NY 10055-0186
Telephone 212 909 2000
November 22, 1996
Mr. Tom Fuller
Nomura Holding America, Inc.
2 World Financial Center
Building B, 17th Floor
New York, New York 10281
BY FAX: (212) 667-1708
Dear Tom:
Reference is made to the Assignment Agreement ("Assignment Agreement")
dated as of September 14, 1996 by and between Nomura Holding America, Inc.
("Nomura"), as Buyer and CS First Boston Securities Corporation ("CSFB"), as
Seller. This is the Pricing Letter referred to therein. (Capitalized terms
used herein shall have the meanings set forth in the Assignment Agreement.)
CSFB represents and warrants to Nomura that the rights being transferred to
Nomura pursuant to the Assignment Agreement include:
MK Stock 963,916
MKRL Stock 473,925
MK Pfd Shares 71,808
Proceeds: MK Rail Note 1,472,035.20
MK3 Rights 153,244.55
MK6 Rights 460,244.02
Cash 530,608.76 Net Proceeds 2,616,132.53
Nomura agrees to pay to CSFB a Net Purchase Price of $11,519,675.44 (the
"Net Purchase Price"), calculated as follows:
<PAGE>
EXHIBIT NO. 5
-------------
<TABLE>
<CAPTION>
Proceeds Owed to CSFB
---------------------
<S> <C>
Funded Revolver [9,921,052.74] 7,671,239.72
Funded Letters of Credit [5,958,661.74] 5,958,661.74
Cost of Carry from July 22, 1996 386,808.65
.75 of Nomura's claim in connection with Swap
negotiations 119,097.86
TOTAL OWED TO CSFB 14,135,807.97
less cash distribution owed to Nomura (2,616,132.53)
NET OWED TO CSFB 11,519,675.44
</TABLE>
The Net Purchase Price shall be paid by Nomura to CSFB in immediately
available funds in accordance with the payment instructions set forth in the
Assignment Agreement.
Each party agrees that, except as may be compelled by legal process or by
an order, judgment or decree or a court or other governmental authority of
competent jurisdiction, it shall not disclose to any person or entity the terms
or conditions of this Pricing Letter.
Very truly yours,
CS FIRST BOSTON SECURITIES
CORPORATION
/s/ David J. Matlin
David J. Matlin
Managing Director
Accepted and Agreed:
NOMURA HOLDING AMERICA, INC.
/s/ Dennis Dolan
- -----------------------------
By: DENNIS DOLAN
Title: Managing Director
