EXHIBIT 10.2
AMENDMENT TO NOTE CANCELLATION AND
RESTRUCTURING AGREEMENT
THIS AMENDMENT TO NOTE CANCELLATION AND RESTRUCTURING
AGREEMENT (this "Amendment") made and entered into as of the ___ day of July,
1996 by and among MK Rail Corporation, a Delaware corporation ("MK Rail"),
Morrison Knudsen Corporation, an Ohio corporation ("MKO"), and Morrison Knudsen
Corporation, a Delaware corporation ("MKC").
W I T N E S S E T H:
WHEREAS, MK Rail, MKO and MKC entered into a Note Cancellation and
Restructuring Agreement (the "Note Cancellation Agreement") dated as of June 20,
1996, under which, subject to the satisfaction of certain conditions set forth
therein, MKO and MKC (collectively, "MK") agreed to cancel a note issued by MK
Rail to MKO dated June 26, 1995 in the original principal amount of $52,200,000
in return for certain payments from MK Rail to MKO; and
WHEREAS, the Note Cancellation Agreement contemplated that MK would
file a joint petition and plan of reorganization in the United States Bankruptcy
Court for the District of Delaware (the "Bankruptcy Court"); and
WHEREAS, MKC has filed a petition and plan of reorganization with the
Bankruptcy Court but MKO has not joined in such a petition or plan of
reorganization; and
WHEREAS, certain changes are required to be made to the Note
Cancellation Agreement to account for the fact that MKO has not joined in the
petition and the plan of reorganization filed by MKC with the Bankruptcy Court,
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements set forth below, the parties hereto, intending to be legally
bound, covenant and agree as follows:
1. Any capitalized terms set forth herein that are not otherwise
defined herein shall have the meanings given to such terms in the
Note Cancellation Agreement.
2. For purposes of the Note Cancellation Agreement, the term "Plan"
shall mean the Plan of Reorganization filed by MKC with the
Bankruptcy Court as it may be from time to time amended.
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3. Section 3 of the Note Cancellation Agreement is hereby amended in
its entirety to read as follows:
3. Motion to Bankruptcy Court. MKC may, at its option, after
filing its initial petition in the Bankruptcy Court, submit to the
Bankruptcy Court a motion (the "Motion") in form and substance approved
in writing by MK Rail (which approval shall not be unreasonably
withheld), requesting an order of the Bankruptcy Court, in form and
substance approved in writing by MK Rail, approving the assumption of
this Agreement and approving the transactions contemplated hereby and
by the Stockholders Agreement (the "Bankruptcy Court Approval"). Among
other things, the Bankruptcy Court Approval, if requested, shall
approve an escrow arrangement in form and substance satisfactory to MKC
and MK Rail as contemplated by Section 5.2 hereof.
4. Section 5.3 (a) of the Note Cancellation Agreement is hereby
amended in its entirety to read as follows:
(a) The "Distribution Condition" shall be satisfied on the
first business day both (A) that is at least ten (10) days after entry
of an order by the Bankruptcy Court which has not been stayed or set
aside confirming a Plan that contains in all substantial respects the
provisions (the "Mandatory Plan Provisions") set forth in Exhibit D
hereto and that does not contain any provisions that are inconsistent
with the terms hereof, the Stockholders Agreement or the Mandatory Plan
Provisions (a "Conforming Plan") and (B) upon which all other
conditions to the Effective Date of the Conforming Plan, other than
those relating to the transactions contemplated hereby, have been
satisfied or waived.
5. References to MKO in Section 13.3 of the Note Cancellation
Agreement are hereby changed to references to MKC.
6. The last paragraph of Exhibit D to the Note Cancellation
Agreement, which states that additional changes to the Plan of
Reorganization of MK will be required to implement the intent and
effect of the Mandatory Plan Provisions if MKO does not become a
debtor, is hereby deleted.
7. Except as expressly modified and amended hereby, the Note
Cancellation Agreement shall continue to be in full force and
effect.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the day and year first set forth above.
MK RAIL CORPORATION
By:____________________________
John C. Pope, Chairman
MORRISON KNUDSEN CORPORATION,
an Ohio Corporation
By:____________________________
Name:__________________________
Title:_________________________
MORRISON KNUDSEN CORPORATION,
a Delaware Corporation
By:____________________________
Name:__________________________
Title:_________________________
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