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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
-------------
(Amendment No. 1)
MK GOLD COMPANY
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(Name of Issuer)
Common Stock, par value $.01 per 55305P100
share
----------------------------------- -----------------------------------
(Title of class of securities) (CUSIP number)
Stephen E. Jacobs, Esq.
Weil, Gotshal & Manges
767 Fifth Avenue
New York, N.Y. 10153
(212) 310-8000
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(Name, address and telephone number of person authorized to receive
notices and communications)
May 24, 1995
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(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.)
Note: When filing this statement in paper format, six copies of this
statement, including exhibits, should be filed with the Commission. See
Rule 13d-1(a) for other parties to whom copies are to be sent.
(Continued on following page(s))
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CUSIP No. 55305P100 13D
1 NAME OF REPORTING PERSON: Leucadia National Corporation
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON:
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_]
(b) [_]
3 SEC USE ONLY
4 SOURCE OF FUNDS: N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [_]
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
6 CITIZENSHIP OR PLACE OF New York
ORGANIZATION:
NUMBER OF 7 SOLE VOTING POWER: 9,000,000(F1)
SHARES
BENEFICIALLY 8 SHARED VOTING POWER: None
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER: 9,000,000(F1)
REPORTING
PERSON WITH 10 SHARED DISPOSITIVE None
POWER:
11 AGGREGATE AMOUNT BENEFICIALLY 9,000,000(F1)
OWNED BY REPORTING PERSON:
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [_]
EXCLUDES CERTAIN SHARES:
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 46.4%
14 TYPE OF REPORTING PERSON: CO
(F1) As described in Item 4 of the Schedule 13D filed with
the Securities and Exchange Commission on May 23, 1995,
pursuant to a Stock Purchase Agreement dated May 12, 1995 as
amended, the Reporting Person has the right to acquire such
shares, subject to the satisfaction of certain conditions.
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This constitutes Amendment No. 1 to the Schedule 13D (the
"Schedule 13D") filed with the Securities and Exchange Commission by
Leucadia National Corporation ("Leucadia"), with respect to the shares
of common stock, par value $.01 per share (the "Common Stock") of
MK Gold Company (the "Company"). Unless otherwise indicated, all
capitalized terms used herein shall have the meanings ascribed to them
in the Schedule 13D.
Item 4. Purpose of the Transaction
--------------------------
On May 24, 1995, the consent of certain lenders to
Seller was delivered into escrow, together with the Shares and the
$22,500,000 purchase price, pursuant to the Amended and Restated
Escrow Agreement filed as Exhibit A to Amendment No. 3 to the Stock
Purchase Agreement, dated as of May 24, 1995, between the Seller and
Leucadia, the form of which is filed as Exhibit 3 hereto.
Item 7. Materials to be Filed as Exhibits.
---------------------------------
3. Amendment No. 3, dated as of May 24, 1995, to the
Stock Purchase Agreement between the Seller and Leucadia.
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SIGNATURE
---------
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this
Statement is true, complete and correct.
Dated: May 25, 1995
LEUCADIA NATIONAL CORPORATION
By: /s/ Joseph A. Orlando
--------------------------
Title: Vice President and
Comptroller
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EXHIBIT INDEX
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Exhibit No. Document
----------- --------
3. Amendment No. 3, dated as of May 24, 1995, to the Stock
Purchase Agreement between the Seller and Leucadia.
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Amendment No. 3 to Stock Purchase Agreement
Reference is made to the Stock Purchase Agreement dated May
12, 1995 (the "Stock Purchase Agreement") by and between Leucadia
National Corporation ("Buyer") and Morrison Knudsen Corporation
("Seller").
All capitalized terms used herein without definition shall
have the meanings ascribed thereto in the Stock Purchase Agreement.
Buyer and Seller hereby agree as follows:
1. Exhibit B shall be amended to substitute therefor the
Amended and Restated Escrow Agreement dated as of May 12,
1995 by and among Buyer, Seller, Mellon Bank, N.A. as
Collateral Agent and Weil, Gotshal & Manges, as escrow
agent, a copy of which is attached hereto as Exhibit A.
In all other respects, the Stock Purchase Agreement as
amended hereby shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of this 24th day of May, 1995.
LEUCADIA NATIONAL CORPORATION
By:
--------------------------------
Title:
-----------------------------
MORRISON KNUDSEN CORPORATION
By:
--------------------------------
Title:
-----------------------------
NYFS04...:\30\76830\0212\570\AMD5185V.000
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EXHIBIT A
Conformed Execution Copy
------------------------
AMENDED AND RESTATED ESCROW AND SECURITY AGREEMENT
AMENDED AND RESTATED ESCROW AND SECURITY AGREEMENT, dated as
of May 12, 1995, by and among LEUCADIA NATIONAL CORPORATION, a New
York corporation ("Buyer"), MORRISON KNUDSEN CORPORATION, a Delaware
corporation ("Seller"), MELLON BANK, N.A., as Collateral Agent (as
defined herein) for the MK Lenders (as defined herein) and Weil,
Gotshal & Manges (a partnership including professional corporations)
("Escrow Agent").
W I T N E S S E T H :
-------------------
WHEREAS, pursuant to an agreement made as of the 12th day of
May 1995 between Seller and Buyer (the "Stock Purchase Agreement")
Seller has agreed to sell to Buyer and Buyer has agreed to purchase
from Seller an aggregate of 9,000,000 shares of the outstanding common
stock, par value $.01 per share, of MK Gold Company, a Delaware
corporation ("Target") (the "Target Shares"); and
WHEREAS, the Stock Purchase Agreement provides for the
deposit (a) by Buyer of US$22,500,000 (the "Escrowed Funds") into an
escrow account (the "Cash Escrow Account"), (b) by Sellers of the
Target Shares, with stock powers duly endorsed in blank (the "Escrowed
Shares") into an escrow account (the "Share Escrow Account"), in each
case to be released in accordance with the provisions of Section 3
hereof; and
WHEREAS, the Stock Purchase Agreement also provides that any
dividends, distributions, redemptions, purchases or other acquisitions
of any shares of capital stock of Target (a "Distribution") received
in respect of the Target Shares shall be for the benefit of Buyer and,
if received by Seller on or after the date of the Stock Purchase
Agreement and prior to the Closing (as defined in the Stock Purchase
Agreement) shall be deposited with the Escrow Agent (the "Escrowed
Distributions") as follows: any cash portion of the Escrowed
Distributions shall be deposited in the Cash Escrow Account with the
balance of the Escrowed Distributions to be deposited into an escrow
account (the "Distributions Escrow Account") to be released in
accordance with the provisions of Section 3 hereof; and
NYFS04...:\30\76830\0001\570\ESC5095V.11E
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WHEREAS, Seller has entered into a Credit Agreement dated as
of April 11, 1995 by and between Morrison Knudsen Corporation, an Ohio
corporation and Seller, as borrowers (collectively, "Borrowers"),
Mellon Bank, N.A. as Administrative Agent (the "Administrative
Agent"), Mellon Bank, N.A. and Bank of America National Trust and
Savings Association, as Co-Agents (the "Co-Agents"), and the other
banks and other financial institutions named therein, as lenders (the
"MK Lenders"), as amended as of April 25, 1995 (the "MK Credit
Agreement") and the Pledge and Security Agreement dated as of April
11, 1995 by and between Seller as pledgor, in favor of the Collateral
Agent on behalf of the MK Lenders, the Administrative Agent and the
Co-Agents (the "MK Pledge Agreement"); and
WHEREAS, Seller pledged the Escrowed Shares to the
Collateral Agent for the ratable benefit of the MK Lenders, to secure
the Obligations (as defined in the MK Credit Agreement) under the MK
Credit Agreement: and
WHEREAS, the Collateral Agent has been informed that it is a
condition under the Stock Purchase Agreement that the MK Lenders
consent to the purchase of the Escrowed Shares by Buyer pursuant to
and as contemplated by the Stock Purchase Agreement (the "MK Lenders'
Consent") and that the Escrowed Shares be deposited into the escrow
established hereunder; and
WHEREAS, the Escrow Agent is willing to serve as Escrow
Agent and hold the Escrowed Shares, the Escrowed Distributions, if
any, and the Escrowed Funds, plus any interest earned thereon,
(collectively, the "Escrowed Property") in accordance with and subject
to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and intending to be legally bound, the parties
hereto agree as follows:
1. Seller, Buyer and the Collateral Agent, on behalf of
the MK Lenders, each hereby consent to the appointment of and hereby
appoint Weil, Gotshal & Manges as Escrow Agent, to serve as escrow
agent in accordance with the terms and conditions herein set forth,
and Escrow Agent hereby accepts such appointment.
2. The Escrowed Funds, the Escrowed Distributions, if any,
the MK Lenders' Consent and the Escrowed Shares shall be deposited
with Escrow Agent as follows:
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(a) On the business day next following the satisfaction or
waiver of the conditions set forth in Section 7.2.7. of the Stock
Purchase Agreement and notice thereof to Buyer (or, with respect to
any Escrowed Distributions, on the business day next following receipt
thereof by Seller), Buyer shall deliver to Escrow Agent the Escrowed
Funds and the Collateral Agent shall deliver to Escrow Agent the MK
Lenders' Consent and the Escrowed Shares, with stock powers duly
endorsed in blank, and Seller shall deliver to Escrow Agent the
Escrowed Distributions, if any. Escrow Agent shall not be liable or
responsible for the collection of the proceeds of any check payable or
endorsed to Escrow Agent hereunder.
(b) Escrow Agent, in accordance with direction provided by
Buyer, shall deposit the Escrowed Funds and the cash portion of any
Escrowed Distributions in certificates of deposit or interest bearing
accounts of Morgan Guaranty Trust Company or any other bank or trust
company, incorporated under the laws of the United States of America
or any state, which has combined capital and surplus of not less than
$100,000,000.
(c) No interest earned on the Escrowed Funds shall become
part of the Escrowed Funds. All interest earned on the Escrowed Funds
shall be the property of Buyer and shall be payable to Buyer at its
written request. Any interest earned on the cash portion of the
Escrowed Distributions shall be added to and become part of the
Escrowed Distributions.
(d) Each of the parties hereto acknowledge its
understanding that pursuant to the terms of the MK Pledge Agreement,
Seller has pledged the Escrowed Shares (and all proceeds thereof) to
the Collateral Agent, for the ratable benefit of the MK Lenders, to
secure the Obligations (as defined in the MK Credit Agreement) under
the MK Credit Agreement and further acknowledges the security interest
in the Escrowed Shares, (and any proceeds thereof), in favor of and
held by the MK Lenders (the "MK Lenders' Security Interest") and
hereby agrees that until all of the terms and conditions of this
escrow agreement have been satisfied or waived, the Escrow Agent will
hold the Escrowed Shares (and any proceeds thereof) subject to the MK
Lenders' Security Interest. The parties hereto acknowledge that
Escrow Agent is holding the Escrowed Shares (and any proceeds thereof)
as agent for the Collateral Agent on behalf of the MK Lenders, the
Administrative Agent and the Co-Agents for the limited purpose of
continuing uninterrupted the MK Lenders' Security Interest in and to
the Escrowed Shares (and any proceeds thereof).
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Seller and the Collateral Agent on behalf of the MK
Lenders hereby acknowledge that no action or inaction on the part of
the Escrow Agent or the Buyer shall in any way alter the relative
rights and obligations of Seller, the Collateral Agent and the MK
Lenders in and with respect to the Escrowed Shares and the proceeds of
the sale thereof pursuant to the Stock Purchase Agreement, it being
understood that such rights and obligations shall be governed
exclusively by the MK Credit Agreement and the MK Pledge Agreement.
3. The Escrowed Property shall be released by the Escrow
Agent as follows:
(a) On the business day immediately following receipt by
Escrow Agent of Disbursing Instructions in the form attached as Annex
A hereto executed by Buyer, Escrow Agent shall send to Seller and the
Collateral Agent notice in the form attached hereto as Annex A-1 of
receipt of such Disbursing Instructions. If within two business days
of receipt of such Disbursing Instructions, Escrow Agent has not
received notice from Seller or the Collateral Agent that it disputes
the release of the Escrowed Property in accordance with such
Disbursing Instructions, on the third business day following receipt
by Escrow Agent of such Disbursing Instructions, Escrow Agent (i)
shall release to the Collateral Agent from the Cash Collateral Account
the US $22,500,000 purchase price set forth in the Stock Purchase
Agreement and (ii) shall release to Buyer the Escrowed Shares, with
stock powers duly endorsed in blank, and the Escrowed Distributions,
if any, including the balance remaining in the Cash Escrow Account
after release of funds to Seller pursuant to (a)(i) above and (iii)
shall release to Seller the MK Lenders' Consent; and
(b) Upon receipt by the Escrow Agent of Disbursing
Instructions in the form attached as Annex B hereto executed by both
Seller and Buyer, Escrow Agent shall release to the Collateral Agent
the MK Lenders' Consent and the Escrowed Shares, with stock powers
duly endorsed in blank, shall release to the Seller the Escrowed
Distributions, if any, (including any cash portion of the Escrowed
Distributions and any interest earned thereon) and shall release to
Buyer the Escrowed Funds; and
(c) If the Escrow Agent shall not have received Disbursing
Instructions in the form attached as Annex A or Annex B hereto duly
executed in accordance herewith on or prior to July 18, 1995, Escrow
Agent shall release to the Collateral Agent the MK Lenders' Consent
and the Escrowed Shares with stock powers duly endorsed in blank,
shall release to the Seller the Escrowed
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<PAGE>
Distributions, if any, (including any cash portion of the Escrowed
Distributions and any interest earned thereon), and shall release to
Buyer the Escrowed Funds;
4. Any notice or certificate given to Escrow Agent under
Section 3 shall be delivered either by facsimile transmission, by hand
or by overnight delivery to the parties at the addresses set forth in
Section 15 of this Agreement; provided that facsimile transmission
shall not be effective unless receipt is telephonically confirmed by
the addressees or confirmed in writing (which may be facsimile
transmitted) by the addressees. Any notice requiring disbursement of
cash by Escrow Agent received by Escrow Agent hereunder after 11:00
A.M. New York City time shall be deemed to have been received on the
next following business day. In the event of any dispute, Escrow
Agent shall retain the Escrowed Property until the dispute is resolved
by the final order or judgment of a court having jurisdiction with
respect thereto. Reasonable fees and costs of the other party or
parties shall be advanced by the party giving notice of a dispute, and
shall be borne by the party or parties not prevailing in the action.
5. Escrow Agent shall be entitled to rely upon, and shall
be fully protected from all liability, loss, cost, damage or expense
in acting or omitting to act pursuant to, any instruction, order,
judgment, certification, affidavit, demand, notice, opinion,
instrument or other writing delivered to it hereunder without being
required to determine the authenticity of such document, the
correctness of any fact stated therein, the propriety of the service
thereof or the capacity, identity or authority of any party purporting
to sign or deliver such document.
6. The duties of Escrow Agent are only as herein
specifically provided, and are purely ministerial in nature. Escrow
Agent shall neither be responsible for, or under, nor chargeable with
knowledge of, the terms and conditions of any other agreement,
instrument or document in connection herewith, including, without
limitation, the agreements referred to in the preamble to this
Agreement, and shall be required to act in respect of the Escrowed
Property only as provided in this Agreement. This Agreement sets
forth all the obligations of Escrow Agent with respect to any and all
matters pertinent to the escrow contemplated hereunder and no
additional obligations of Escrow Agent shall be implied from the terms
of this Agreement or any other agreement. Escrow Agent shall incur no
liability in connection with the discharge of its obligations under
this Agreement or otherwise in connection therewith, except such
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<PAGE>
liability as may arise from the willful misconduct or gross negligence
of Escrow Agent.
7. Escrow Agent may consult with counsel of its choice,
which may include attorneys in the firm of Weil, Gotshal & Manges, and
shall not be liable for any action taken or omitted to be taken by
Escrow Agent in accordance with the advice of such counsel.
8. No party shall be bound by any modification,
cancellation or rescission of this Agreement unless in writing and
signed by all parties hereto.
9. Escrow Agent shall have no tax reporting duties with
respect to the Escrowed Property, or income thereon, such duties being
the responsibility of the party or parties which receive, or have the
right to receive, any taxable income hereunder. Notwithstanding the
foregoing, Escrow Agent has the authority to comply with the
provisions of Section 468B(g) of the Internal Revenue Code of 1986, as
amended, and any regulations promulgated thereunder. Such authority
shall include, without limitation, (i) the filing of tax returns
(including information returns) with respect to the Escrowed Property,
or income thereon, (ii) the payment of any tax, interest or penalties
imposed thereon, (iii) the withholding of any amounts which are
required to be withheld and (iv) the payment over of such withheld
amounts to the appropriate taxing authority. The parties to this
Agreement, other than Escrow Agent, shall provide Escrow Agent with
all information necessary to enable Escrow Agent to comply with the
foregoing. Escrow Agent may withdraw from the Cash Escrow Account
amounts necessary to pay all applicable income or withholding taxes
(plus interest and penalties thereon) that are required to be paid.
The parties hereto acknowledge that (a) the Escrowed Funds shall
remain the property of Buyer unless and until disbursed to the
Collateral Agent pursuant to Section 3 hereof and (b) the Escrowed
Distributions and, subject to the MK Lenders' Security Interest
therein, the Escrowed Shares shall remain Seller's property, unless
and until disbursed to Buyer pursuant to Section 3 hereof.
10. Except as otherwise provided herein, Escrow Agent is
acting as a stakeholder only with respect to the Escrowed Property.
If any dispute arises as to whether Escrow Agent is obligated to
deliver the Escrowed Property or as to whom the Escrowed Property are
to be delivered or the amount thereof, Escrow Agent shall not be
required to make any delivery, but in such event Escrow Agent may hold
the Escrowed Property until receipt by Escrow Agent of instructions in
writing, signed by all
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<PAGE>
parties which have, or claim to have, an interest in the Escrowed
Property, directing the disposition of the Escrowed Property, or in
the absence of such authorization, Escrow Agent may hold the Escrowed
Property until receipt of a certified copy of a final judgment of a
court of competent jurisdiction providing for the disposition of the
Escrowed Property. Escrow Agent may require, as a condition to the
disposition of the Escrowed Property pursuant to written instructions,
indemnification and/or opinions of counsel, in form and substance
satisfactory to Escrow Agent, from each party providing such
instructions. If such written instructions, indemnification and
opinions are not received, or proceedings for such determination are
not commenced within 30 days after receipt by Escrow Agent of notice
of any such dispute and diligently continued, or if Escrow Agent is
uncertain as to which party or parties are entitled to the Escrowed
Property, Escrow Agent may hold the Escrowed Property until receipt of
(A) such written instructions and indemnification or (B) a certified
copy of a final judgment of a court of competent jurisdiction
providing for the disposition of the Escrowed Property; provided,
however, that notwithstanding the foregoing, Escrow Agent may, but
shall not be required to, institute legal proceedings of any kind.
11. Buyer and Seller, and not the Collateral Agent, jointly
and severally, agree to reimburse Escrow Agent on demand for, and to
indemnify and hold Escrow Agent harmless against and with respect to,
any and all loss, liability, damage, or expense (including, without
limitation, taxes, attorneys' fees and costs) that Escrow Agent may
suffer or incur in connection with the entering into of this Agreement
and performance of its obligations under this Agreement or otherwise
in connection therewith, except to the extent such loss, liability,
damage or expense arises from the willful misconduct of Escrow Agent.
Escrow Agent, after not less than ten days prior written notice to the
other parties hereto, shall have the right at any time and from time
from time to charge, and reimburse itself from, the Escrowed Property
for all amounts to which it is entitled pursuant this Agreement.
Escrow Agent shall not receive a fee for its services rendered as
Escrow Agent hereunder.
12. Escrow Agent and any successor escrow agent may at any
time resign as such by delivering the Escrowed Property to any
successor escrow agent designated by all the parties hereto (other
than Escrow Agent) in writing. Upon its resignation and delivery of
the Escrowed Property as set forth in this paragraph, Escrow Agent
shall be discharged of, and from, any and all further obligations
arising in connection with the escrow contemplated by this Agreement.
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13. Escrow Agent shall have the right to represent any
party hereto in any dispute between the parties hereto with respect to
the Escrowed Property or otherwise.
14. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective permitted
successors and assigns. Nothing in this Agreement, express or
implied, shall give to anyone, other than the parties hereto and their
respective permitted successors and assigns, any benefit, or any legal
or equitable right, remedy or claim, under or in respect of this
Agreement or the escrow contemplated hereby.
15. Except as specifically provided otherwise herein, any
notice authorized or required to be given to a party hereto pursuant
to this Agreement shall be deemed to have been given when hand-
delivered, or when mailed by United States certified or registered
mail, postage prepaid, return receipt requested, addressed to the
parties at the following addresses:
If to Buyer, to:
Leucadia National Corporation
315 Park Avenue South
New York, New York
Attention: Joseph S. Steinberg, President
Facsimile No.: 212 598-3245
with a copy to:
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Attention: Stephen E. Jacobs, Esq.
Facsimile No.: 212 310-8007
If to Seller, to:
Morrison Knudsen Corporation
720 Park Boulevard
Boise, Idaho 93729
Attention: Stephen G. Hanks
Facsimile No.: 208 386-7186
with a copy to:
Jones, Day, Reavis & Pogue
5555 West 5th Street, Suite 4600
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<PAGE>
Los Angeles, California 90015
Attention: Robert Dean Avery, Esq.
Facsimile No.: 213 243-2539
If to the Collateral Agent, to:
Mellon Bank, N.A.
One Mellon Bank Center
Pittsburgh, Pennsylvania 15258-0001
Attention: Alan Kopolow
Facsimile No.: 412 236-1174
with a copy to:
Murphy, Weir & Butler
101 California Street
San Francisco, California 94111
Attention: Ellen A. Friedman, Esq.
Facsimile No.: 415 421-7879
If to Escrow Agent, to:
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Attention: Stephen E. Jacobs, Esq.
Facsimile No.: 212 310-8007
Any party may change its respective address by giving notice thereof
in writing to the other parties hereto in the same manner as set forth
above.
16. This Agreement shall terminate on the date on which all
Escrowed Property has been fully disbursed or release herefrom in
accordance with Section 3 hereof.
17. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York. All actions
against Escrow Agent arising under or relating to this Agreement shall
be brought against Escrow Agent exclusively in the appropriate court
in the County of New York, State of New York. Each of the parties
hereto agrees to submit to personal jurisdiction and to waive any
objection as to venue in the County of New York, State of New York.
Service of process on any party hereto in any action arising out of or
relating to this Agreement shall be effective if mailed to such party
and such party's counsel as set forth in Section 15 hereof.
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<PAGE>
18. The Collateral Agent shall incur no liability in
connection with its execution, delivery or performance of its
obligations under this Agreement, except such liability as may arise
from the wilful misconduct or gross negligence of Collateral Agent.
The execution by the Collateral Agent of this Agreement and delivery
of Escrowed Shares pursuant hereto shall not create in the Collateral
Agent any responsibility for or obligation with respect to (a) the
execution, validity or enforceability of this Agreement by any other
party hereto or (b) the underlying contractual relationships of the
parties hereto.
19. TO THE FULL EXTENT PERMITTED BY LAW, EACH OF THE
PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
THE RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR ESCROW AGENT ENTERING INTO THIS
AGREEMENT.
20. This Agreement may be executed in any number of
separate counterparts, each of which shall, collectively and
separately, constitute one agreement.
21. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine or neuter, singular or plural, as
the identity of the parties hereto taken within context may require.
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<PAGE>
22. The rights of Escrow Agent contained in this Agreement,
including without limitation the right to indemnification, shall
survive the resignation of Escrow Agent and the termination of the
escrow contemplated hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first written
above.
LEUCADIA NATIONAL CORPORATION
By: /s/ Joseph A. Orlando
--------------------------------
Title: Vice President
-----------------------------
MORRISON KNUDSEN CORPORATION
By: /s/ Stephen G. Hanks
--------------------------------
Title: Executive Vice President
-----------------------------
MELLON BANK, N.A., as Collateral
Agent for the MK Lenders
By: /s/ Alan Kopolow
-------------------------------
Title: Vice President
----------------------------
ESCROW AGENT: WEIL, GOTSHAL & MANGES
By: /s/ Stephen E. Jacobs, P.C.
--------------------------------
(A Member of the Firm)
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<PAGE>
ANNEX A
-------
Disbursing Instructions for Release
of Escrow Property upon
Satisfaction or Waiver of Conditions
-------------------------------------
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Attn: Stephen E. Jacobs, Esq.
Reference is made to that certain Amended and Restated
Escrow Agreement, dated as of May 12, 1995 by and among Leucadia
National Corporation ("Buyer"), Morrison Knudsen Corporation
("Seller"), Mellon Bank, N.A. as Collateral Agent and Weil, Gotshal &
Manges as Escrow Agent (the "Escrow Agreement"). All capitalized
terms used herein without definition shall have the meanings ascribed
thereto in the Escrow Agreement.
All conditions to closing under the Stock Purchase Agreement
have been satisfied and accordingly, pursuant to and in accordance
with the Escrow Agreement, you are hereby directed (a) to release to
the Collateral Agent US$22,500,000 of the Escrowed Funds from the Cash
Escrow Account established under the Escrow Agreement, (b) to release
to Buyer (i) the Escrowed Shares, together with stock powers duly
endorsed in blank, from the Share Escrow Account established under the
Escrow Agreement, and (ii) the Escrowed Distributions, if any,
including the balance remaining in the Cash Escrow Account after
release of funds to Seller pursuant to (a) above and (c) shall release
to Seller the MK Lenders' Consent.
LEUCADIA NATIONAL CORPORATION
-----------------------------
By:
----------------------
Title:
------------------
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<PAGE>
ANNEX A-1
Morrison Knudsen Corporation
720 Park Boulevard
Boise, Idaho 93729
Attention: Stephen G. Hanks
Mellon Bank, N.A.
Attention:
Gentlemen:
Reference is made to that certain Amended and Restated
Escrow Agreement, dated as of May 12, 1995 by and among Leucadia
National Corporation ("Buyer"), Morrison Knudsen Corporation
("Seller"), Mellon Bank, N.A. as Collateral Agent and Weil, Gotshal &
Manges as Escrow Agent (the "Escrow Agreement"). All capitalized
terms used herein without definition shall have the meanings ascribed
thereto in the Escrow Agreement.
On _____, 1995, Escrow Agent received the attached
Disbursing Instructions executed by Buyer stating that all conditions
to closing under the Stock Purchase Agreement have been satisfied and
instructing the Escrow Agent to disburse the Escrowed Property in
accordance with such Disbursing Instructions. In accordance with the
terms of the Escrow Agreement, if Escrow Agent does not receive notice
from Seller or the Collateral Agent that it disputes the release of
the Escrowed Property in accordance with such Disbursing Instructions,
on or before ______, 1995, Escrow Agent shall (a) release to the
Collateral Agent US$22,500,000 of the Escrowed Funds from the Cash
Escrow Account established under the Escrow Agreement, and (b) release
to Buyer (i) the Escrowed Shares, together with stock powers duly
endorsed in blank, from the Share Escrow Account established under the
Escrow Agreement, and (ii) the Escrowed Distributions, if any,
including the balance remaining in the Cash Escrow Account after
release of funds to Seller pursuant to (a) above.
WEIL, GOTSHAL & MANGES
By:
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(A Member of the Firm)
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ANNEX B
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Disbursing Instructions upon
Section 9 Event
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Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Attn: Stephen E. Jacobs, Esq.
Reference is made to that certain Amended and Restated
Escrow Agreement, dated as of May 12, 1995 by and among Leucadia
National Corporation ("Buyer"), Morrison Knudsen Corporation
("Seller") and Mellon Bank, N.A. as Collateral Agent and Weil, Gotshal
& Manges as Escrow Agent (the "Escrow Agreement"). All capitalized
terms used herein without definition shall have the meanings ascribed
thereto in the Escrow Agreement.
Pursuant to and in accordance with the Escrow Agreement, you
are hereby directed to (a) to release to Buyer the Escrowed Funds from
the Cash Escrow Account established under the Escrow Agreement and
(b) to release to the Collateral Agent the MK Lenders' Consent and the
Escrowed Shares, together with stock powers duly endorsed in blank,
from the Share Escrow Account established under the Escrow Agreement
and (c) to release to Seller the Escrowed Distributions, if any,
including the balance remaining in the Cash Escrow Account after
release of the Escrowed Funds to Buyer.
LEUCADIA NATIONAL CORPORATION
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By:
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Title:
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MORRISON KNUDSEN CORPORATION
By:
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Title:
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