SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 58)*
VALHI, INC.
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
918905100
(CUSIP Number)
WILLIAM C. TIMM
THREE LINCOLN CENTRE
SUITE 1700
5430 LBJ FREEWAY
DALLAS, TEXAS 75240
(214) 233-1700
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 22, 1994
(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.)
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to by "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following pages)
CUSIP No. 918905100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Contran Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
104,365,963
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
104,365,963
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
104,365,963
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
90.8%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
CUSIP No. 918905100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
NL Industries, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New Jersey
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
1,186,200
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
1,186,200
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,186,200
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.0%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
CUSIP No. 918905100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Tremont Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
1,186,200
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
1,186,200
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,186,200
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.0%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
CUSIP No. 918905100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Valhi Group, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
86,830,696
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
86,830,696
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
86,830,696
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
75.5%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
CUSIP No. 918905100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
National City Lines, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
98,321,705
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
98,321,705
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
98,321,705
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
85.5%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
CUSIP No. 918905100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
NOA, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
98,321,705
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
98,321,705
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
98,321,705
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
85.5%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
CUSIP No. 918905100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Dixie Holding Company
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
86,830,696
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
86,830,696
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
86,830,696
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
75.5%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
CUSIP No. 918905100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Dixie Rice Agricultural Corporation, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Louisiana
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
86,830,696
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
86,830,696
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
86,830,696
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
75.5%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
CUSIP No. 918905100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Southwest Louisiana Land Company, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Louisiana
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
98,321,705
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
98,321,705
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
98,321,705
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
85.5%
14
TYPE OF REPORTING PERSON*
CO
[FN]
* See instructions before filling out.
CUSIP No. 918905100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Combined Master Retirement Trust
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
7
SOLE VOTING POWER
NUMBER OF
SHARES -0-
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
1,301,200
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
-0-
10 SHARED DISPOSITIVE POWER
1,301,200
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,301,200
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.1%
14
TYPE OF REPORTING PERSON*
EP
[FN]
* See instructions before filling out.
CUSIP No. 918905100
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Harold C. Simmons
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
7
SOLE VOTING POWER
NUMBER OF
SHARES 563,342
BENEFICIALLY
8
SHARED VOTING POWER
OWNED BY
EACH
104,557,963
REPORTING
PERSON 9
SOLE DISPOSITIVE POWER
WITH
563,342
10 SHARED DISPOSITIVE POWER
104,557,963
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
563,342
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* X
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.5%
14
TYPE OF REPORTING PERSON*
IN
[FN]
* See instructions before filling out.
AMENDMENT NO. 58
TO SCHEDULE 13D
This amended and restated statement on Schedule 13D (this "Statement")
is the initial electronic filing by the Reporting Persons, as defined below.
Item 1. Security and Issuer.
This Statement relates to the Common Stock, $.01 par value per share
(the "Shares") of Valhi, Inc., a Delaware corporation (the "Company" or
"Valhi"). The principal executive offices of the Company are located at Three
Lincoln Centre, 5430 LBJ Freeway, Suite 1700, Dallas, Texas 75240.
Item 2. Identity and Background.
(a) This Statement is filed by (i) Contran Corporation ("Contran"),
Valhi Group, Inc. ("VGI"), National City Lines, Inc. ("National") The Combined
Master Retirement Trust (the "Master Trust") and NL Industries, Inc. ("NL") as
the direct beneficial owners of Shares, (ii) by virtue of their respective
direct and indirect holdings of securities of NL, VGI and National (as described
below on this Statement), by Tremont Corporation ("Tremont"), NOA, Inc. ("NOA"),
Dixie Rice Agricultural Corporation, Inc. ("Dixie Rice"), Dixie Holding Company
("Dixie Holding") and Southwest Louisiana Land Company, Inc. ("Southwest") and
(iii) by virtue of his positions with Contran, the Master Trust and certain
other entities, as described below on this Statement, Harold C. Simmons
(collectively, the "Reporting Persons"). By signing this Statement, each
Reporting Person agrees that this Statement is filed on its or his behalf.
Valhi and Tremont are the holders of approximately 48.9% and 17.8%,
respectively, of the outstanding common stock of NL. Together Valhi and Tremont
may be deemed to control NL. Valhi is the holder of approximately 48.1% of the
outstanding common stock of Tremont and may be deemed to control Tremont. VGI,
National and Contran are the holders of approximately 74.5%, 10.0% and 5.3%,
respectively, of the outstanding common stock of Valhi. Together, VGI, National
and Contran may be deemed to control Valhi. NL is the holder of approximately
1.0% of the outstanding stock of Valhi. National, NOA, and Dixie Holding are
the holders of approximately 73.3%, 11.4% and 15.3%, respectively, of the
outstanding common stock of VGI. Together, National, NOA and Dixie Holding may
be deemed to control VGI. Contran and NOA are the holders of approximately
85.7% and 14.3%, respectively, of the outstanding common stock of National and
together may be deemed to control National. Contran and Southwest are the
holders of approximately 49.9% and 50.1%, respectively, of the outstanding
common stock of NOA and together may be deemed to control NOA. Dixie Rice is
the holder of 100% of the outstanding common stock of Dixie Holding and may be
deemed to control Dixie Holding. Contran is the holder of approximately 88.7%
and 54.3% of the outstanding common stock of Southwest and Dixie Rice,
respectively, and may be deemed to control Southwest and Dixie Rice. All of
Contran's outstanding voting stock is held by trusts, (together, the "Trusts"),
established for the benefit of Mr. Simmons' children and grandchildren, of which
Mr. Simmons is the sole trustee. As sole trustee of the Trusts, Mr. Simmons has
the power to vote and direct the disposition of the shares of Contran stock held
by the Trusts; however, Mr. Simmons disclaims beneficial ownership thereof.
The Master Trust holds approximately .1% of the outstanding Shares. The Master
Trust is a trust formed by Valhi to permit the collective investment by trusts
which maintain the assets of certain employee benefit plans adopted by Valhi and
related companies. Mr. Simmons is sole trustee of the Master Trust and sole
member of the Trust Investment Committee for the Master Trust. Mr. Simmons is a
participant in one or more of the employee benefit plans which invest through
the Master Trust; however, Mr. Simmons disclaims beneficial ownership of the
Shares held by the Master Trust, except to the extent of his vested beneficial
interest therein. Mr. Simmons is Chairman of the Board, President, and Chief
Executive Officer of Valhi, VGI, National, NOA, Dixie Holding, and Contran, is
Chairman of the Board and Chief Executive Officer of Dixie Rice and Southwest,
is Chairman of the Board of NL, and is a Director of Tremont.
By virtue of the relationships described above (a) Mr. Simmons may be
deemed to control Tremont, NL, Valhi, VGI, National, NOA, Dixie Rice, Dixie
Holding, Southwest and Contran, (b) Mr. Simmons (as trustee), the Trusts,
Tremont, Valhi, VGI, National, NOA, Dixie Rice, Dixie Holding, Southwest and
Contran may be deemed to possess indirect beneficial ownership of the Shares
held by NL, (c) Mr. Simmons (as trustee), the Trusts, National, NOA, Dixie Rice,
Dixie Holding, Southwest and Contran may be deemed to possess indirect
beneficial ownership of the Shares held by VGI, (d) Mr. Simmons (as trustee),
the Trusts, NOA, Southwest and Contran may be deemed to possess indirect
beneficial ownership of the Shares held by National, (e) Mr. Simmons (as
trustee) and the Trusts may be deemed to possess indirect beneficial ownership
of the Shares held by Contran and (f) Mr. Simmons (as trustee) may be deemed to
possess indirect beneficial ownership of the Shares held by the Master Trust.
However, Mr. Simmons and the Trusts disclaim such beneficial ownership of the
Shares beneficially owned, directly or indirectly, by such entities, except as
noted above.
Certain information concerning the directors and executive officers of the
Reporting Persons, including offices held by Harold C. Simmons, is set forth on
Schedule B attached hereto and incorporated herein by reference.
(b) The principal executive offices of NL are located at 3000 North
Sam Houston Parkway East, Houston, Texas 77032. The principle executive offices
of Tremont are located at 1999 Broadway, Suite 4300, Denver, Colorado 80202.
The principal offices of Valhi, VGI, National, NOA, Dixie Rice, Dixie Holding,
Southwest and Contran are located at, and the business address of each of the
Master Trust and Harold C. Simmons, is Three Lincoln Centre, 5430 LBJ Freeway,
Suite 1700, Dallas, Texas 75240. The principal business address of Dixie Rice
is 600 Pasquiere Street, Gueydan, Louisiana 70542. The principal business
address of Southwest is 402 Canal Street, Houma, Louisiana 70360. The business
addresses of the remaining directors and executive officers of the Reporting
Persons are set forth on Schedule B to this Statement and incorporated herein by
reference.
(c) NL is a holding company engaged through subsidiaries in the
international production and marketing of chemical products.
Tremont is a holding company engaged through subsidiaries (other than
NL) in the production and marketing of titanium metals products.
Valhi is a holding company engaged, through operating subsidiaries
(other than NL and Tremont), in the refined sugar, integrated forest products,
fast food and hardware products industries.
VGI does not engage in any business activity other than holding
Shares. National is engaged directly or through subsidiaries (other than VGI
and its subsidiaries), in real estate and oil and gas activities. Contran is
engaged through subsidiaries (including Southwest, Dixie and others), other than
National and its subsidiaries, in various land management, agricultural and oil
and gas activities. NOA holds investments in land, securities and notes
receivable. Dixie Holding does not engage in any business activity other than
holding common stock of VGI.
The Master Trust is a trust formed by Valhi to permit the collective
investment by trusts which maintain the assets of certain employee benefit plans
adopted by Valhi and related companies. The employee benefit plans funded by
the trusts participating in the Master Trust are subject to the provisions of
the Employer Retirement Income Security Act ("ERISA").
(d) Neither any of the Reporting Persons nor, to the best knowledge
of such persons, any person named in Schedule B to this Statement, has been
convicted in a criminal proceeding in the past five years (excluding traffic
violations or similar misdemeanors).
(e) During the past five years, neither any of the Reporting Persons
nor, to the best knowledge of such persons, any person named in Schedule B to
this Statement, was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which such person
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 of finding any violation with respect to such laws.
(f) NL is a New Jersey corporation. Contran, Valhi, Tremont, Dixie
Holding, and National are Delaware corporations. VGI is a Nevada corporation.
NOA is a Texas corporation. Dixie and Southwest are Louisiana corporations.
The Master Trust is governed by the laws of Texas, except as those laws are
superseded by federal law. Harold C. Simmons and all persons named on Schedule
B to this Statement are citizens of the United States, except as otherwise
indicated on such Schedule.
Item 3. Source and Amount of Funds or Other Consideration
The total amount of funds required by Contran to acquire the Shares
reported in Item 5(c) was $499,390 (including commissions). Such funds were or
will be provided by Contran's cash on hand and no funds were borrowed for such
purpose.
The Reporting Persons understand that the funds required by persons
named in Schedule B to this Statement to acquire Shares were from such persons'
personal funds.
Item 4. Purpose of Transaction.
Contran, VGI, National, NL and the Master Trust acquired Shares to
obtain an equity interest in the Company. Contran purchased the additional
Shares reported in Item 5(c) of this Statement in order to increase its equity
interest in the Company. Depending upon their evaluation of the Company's
business and prospects, and upon future developments (including, but not limited
to, performance of the Shares in the market, availability of funds, alternative
uses of funds, and money, stock market and general economic conditions), any of
the Reporting Persons, other than the Master Trust, or other entities that may
be deemed to be affiliated with Contran may from time to time purchase Shares,
and any of the Reporting Persons or other entities that may be deemed to be
affiliated with Contran may from time to time dispose of all or a portion of the
Shares held by such person, or cease buying or selling Shares. Any such
additional purchases or sales of the Shares may be in open market or privately-
negotiated transactions or otherwise.
As described under Item 2 above, Harold C. Simmons may be deemed to
control the Company.
The Reporting Persons understand that prior purchases of Shares by
persons named in Schedule B to this Statement were made for the purpose of each
such person's personal investment.
Except as described in this Item 4, none of the Reporting Persons nor,
to the best knowledge of such persons, any other person named in Schedule B to
this Statement has formulated any plans or proposals which relate to or would
result in any matter required to be disclosed in response to paragraphs (a)
through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) NL is the direct beneficial owner of 1,186,200 Shares, or
approximately 1.0% of the 114,994,214 Shares outstanding as of July 31, 1994
(the "Outstanding Shares"), according to information contained in the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1994 (the
"Quarterly Report"). By virtue of the relationships described under Item 2 of
this Statement, each of the other Reporting Persons may be deemed to share
indirect beneficial ownership of the Shares directly beneficially owned by NL.
Harold C. Simmons disclaims all such beneficial ownership.
VGI is the direct beneficial owner of 85,644,496 Shares, or
approximately 74.5% of the Outstanding Shares according to the information
contained in the Quarterly Report. By virtue of the relationships reported
under Item 2 of this Statement, VGI may be deemed to be the beneficial owner of
86,830,696 Shares, or approximately 75.5% of the outstanding Shares according to
information contained in the Quarterly Report. By virtue of the relationships
described under Item 2 of this Statement, National, NOA, Southwest, Dixie
Holding, Dixie Rice, Contran and Harold C. Simmons may be deemed to share
indirect beneficial ownership of the Shares directly owned by VGI. Mr. Simmons
disclaims all such beneficial ownership.
National is the direct beneficial owner of 11,491,009 Shares or
approximately 10.0% of the Outstanding Shares according to information contained
in the Quarterly Report. By virtue of the relationships reported under Item 2
of this Statement, National may be deemed to be the beneficial owner of
98,321,705 Shares, or approximately 85.5% of the Outstanding Shares according to
information contained in the Quarterly Report. By virtue of the relationships
described under Item 2 of this Statement, NOA, Southwest, Contran and Harold C.
Simmons may be deemed to share indirect beneficial ownership of the Shares
directly owned by National. Mr. Simmons disclaims all such beneficial
ownership.
Contran is the direct beneficial owner of 6,044,258 Shares, or
approximately 5.3% of the Outstanding Shares according to information contained
in the Quarterly Report. By virtue of the relationships described under Item 2
of this Statement, Contran may be deemed to be the beneficial owner of
104,365,963 Shares, or approximately 90.8% of the Outstanding Shares according
to information contained in the Quarterly Report. By virtue of the
relationships described under Item 2 of this Statement, Harold C. Simmons may be
deemed to share indirect beneficial ownership of the Shares directly owned by
Contran. Mr. Simmons disclaims all such beneficial ownership.
The Master Trust is the direct beneficial owner of 115,000 Shares, or
approximately 0.1% of the Outstanding Shares according to information contained
in the Quarterly Report. By virtue of the relationships described under Item 2
of this Statement the Master Trust may be deemed to be the beneficial owner of
1,301,200 Shares, or approximately 1.1% of the Outstanding Shares according to
information contained in the Quarterly Report. By virtue of the relationships
described under Item 2 of this Statement, Harold C. Simmons may be deemed to
share indirect beneficial ownership of the Shares directly owned by the Master
Trust. Mr. Simmons disclaims all such beneficial ownership, except to the
extent of his vested beneficial interest therein.
The Reporting Persons understand, based on ownership filings with the
Securities and Exchange Commission or upon information provided by the persons
listed on Schedule B to this Statement, that such persons, including Harold C.
Simmons, may be deemed to personally beneficially own Shares, as indicated on
Schedule C to this Statement.
(b) Each of the Master Trust, Contran, VGI, National and NL has the
direct power to vote and direct the disposition of the Shares held by it. By
virtue of the relationships described in Item 2; each of the Reporting Persons
may be deemed to share the indirect power to vote and direct the disposition of
the Shares held by NL; National, NOA, Southwest, Dixie Holding, Dixie Rice,
Contran and Harold C. Simmons may be deemed to share the indirect power to vote
and direct the disposition of the Shares held by VGI; NOA, Southwest, Contran
and Harold C. Simmons may be deemed to share the indirect power to vote and
direct the disposition of the Shares held by National; and Harold C. Simmons may
be deemed to have the power to vote and direct the disposition of the Shares
held by Contran and the Master Trust.
(c) The table below sets forth purchases of the Shares by the
Reporting Persons during the last 60 days. All of such purchases were effected
by Contran on the New York Stock Exchange.
<TABLE>
<CAPTION>
Approximate Price
Per Share ($)
(exclusive of commissions)
Date Amount of Shares
<S> <C> <C>
07/01/94 1,000 5.00
07/06/94 600 5.00
07/11/94 800 5.00
07/12/94 500 5.00
07/29/94 3,500 5.50
08/01/94 500 5.50
08/03/94 2,500 5.75
08/08/94 19,500 5.75
08/09/94 20,000 5.75
08/10/94 5,000 5.625
08/17/94 1,500 5.75
08/18/94 10,500 5.75
08/19/94 3,300 5.75
08/22/94 4,300 5.75
08/23/94 400 5.75
08/24/94 5,000 5.75
08/24/94 5,000 5.625
08/26/94 3,000 5.75
08/29/94 400 5.75
</TABLE>
(d) The Master Trust, Contran, VGI, National and NL each has the
right to receive and the power to direct the receipt of dividends from, and the
proceeds from the sale of, the Shares held by it.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer.
Contran and National are parties to a $15 million credit facility
dated as of January 30, 1987, as amended and supplemented January 31, 1989,
April 25, 1990, April 25, 1991, May 8, 1991, April 21, 1992, May 21, 1992,
August 30, 1993 and August 30, 1994, with United States National Bank of Oregon
("U.S. National"). Borrowings under the U.S. National facility bear interest at
the rate announced publicly from time to time as U.S. National's prime rate, are
due August 31, 1995 or such extended maturity date as may be mutually agreed to,
and are secured by certain Shares. No borrowings are currently outstanding
under the U.S. National facility. The foregoing summary of the U.S. National
facility is qualified in its entirety by reference to the attached Exhibit 1,
which is incorporated herein by this reference.
Other than set forth above, neither any of the Reporting Persons nor,
to the best knowledge of such persons, any person named in Schedule B to this
Statement has any contract, arrangement, understanding or relationship (legal or
otherwise) with any person with respect to securities of the Company, including,
but not limited to, transfer or voting of any such securities, finder's fees,
joint ventures, loans or option arrangements, puts or calls, guarantees of
profits, division of profits or losses, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1: Credit facility dated as of January 30, 1987, as amended
and supplemented January 31, 1989, April 25, 1990, April 25, 1991, May 8, 1991,
April 21, 1992, May 21, 1992, August 30, 1993 and August 30, 1994, among
Contran, National and U.S. National.
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.
Date: August 30, 1994
By: /s/ Harold C. Simmons
Harold C. Simmons,
Signing in the capacities
listed on Schedule "A" attached
hereto and incorporated herein
by reference.
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.
Date: August 30, 1994
By: /s/ J. Landis Martin
J. Landis Martin,
Signing in the capacities listed
on Schedule "A" attached hereto
and incorporated herein
by reference.
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.
Date: August 30, 1994
By: /s/ William C. Timm
William C. Timm,
Signing in the capacities listed
on Schedule "A" attached hereto
and incorporated herein by
reference.
SCHEDULE A
Harold C. Simmons, individually, and as Trustee of
THE COMBINED MASTER RETIREMENT TRUST.
William C. Timm, as Vice President-Finance of each of:
CONTRAN CORPORATION
DIXIE RICE AGRICULTURAL CORPORATION, INC.
DIXIE HOLDING COMPANY
NATIONAL CITY LINES, INC.
VALHI GROUP, INC.
VALHI, INC.
SOUTHWEST LOUISIANA LAND COMPANY, INC.
J. Landis Martin, as Chief Executive Officer and President of each of:
NL INDUSTRIES, INC.
TREMONT CORPORATION
SCHEDULE B
The names of the directors and executive officers of Contran
Corporation ("Contran"), Dixie Rice Agricultural Corporation, Inc. ("Dixie
Rice"), Dixie Holding Company ("Dixie Holding"), National City Lines, Inc.
("National"), NOA, Inc. ("NOA"), Southwest Louisiana Land Company, Inc.
("Southwest"), Valhi Group, Inc. ("VGI"), Valhi, Inc. ("Valhi"), NL Industries,
Inc. ("NL") and Tremont Corporation ("Tremont") and their present principal
occupations are set forth below. Except as otherwise indicated, the business
address of each such person is 5430 LBJ Freeway, Suite 1700, Dallas, Texas
75240.
Name Present Principal Occupation
Kirby C. Adams Vice President of Tremont,
1999 Broadway, Suite 4300
Denver, Colorado 80202.
Susan E. Alderton Vice President and Treasurer of NL;
Director of Tremont.
70 East 55th Street, 8th Floor,
New York, New York 10022.
Eugene K. Anderson Vice President of Contran, Dixie
Holding, National, NOA, Valhi and VGI.
Arthur H. Bilger Director of Valhi; Private Investor;
Principal of Lion Advisors, L.P. and
Apollo Advisors, L.P.
(investment-related activities).
1999 Avenue of the Stars, Suite 1900,
Los Angeles, California 90067.
Richard J. Boushka Director of Tremont; Principal of
Boushka Properties (private
investment firm). 7701 East
Kellogg, Suite 650, Wichita, Kansas
67207.
F. Murlyn Broussard Treasurer of Southwest. 402 Canal
Street, Houma, Louisiana 70360.
Joseph S. Compofelice Vice President and Chief Financial
Officer of NL and Tremont, Executive
Vice President of Valhi.
3000 No. Sam Houston Parkway East,
Houston, Texas 77032.
Norman S. Edelcup Director of Valhi; Chairman of the
Board of Item Processing of
America, Inc. (processing service
bureau). 5190 N.W. 167th Street,
Suite 300, Miami, Florida 33014.
Robert J. Frame Director of Valhi; Professor of
Finance, Emeritus, at the Cox
School of Business, Southern
Methodist University; President of
Frame Financial Group, Inc.
(registered broker/dealer and a
member of the Chicago Board Options
Exchange). 17218 Preston Road,
Suite 421, Dallas, Texas 75252.
David B. Garten Vice President, Secretary and
General Counsel of NL. 3000 North
Sam Houston Parkway East, Houston,
Texas 77032.
William J. Lindquist Vice President and Tax Director of
Contran, Dixie Rice, Dixie Holding,
National, NOA, Southwest, VGI and
Valhi.
J. Landis Martin Director, President and Chief
Executive Officer of NL; Director,
Chairman of the Board, President
and Chief Executive Officer of
Tremont. 3000 No. Sam Houston
Parkway East, Houston, Texas 77032.
Andrew McCollam, Jr. Director of Dixie Rice; President
and Director of Southwest; Private
Investor. 402 Canal Street, Houma,
Louisiana 70360.
Harold M. Mire Vice President and General Manager
of Dixie Rice and Southwest.
600 Pasquiere Street,
Gueydan, Louisiana 70542.
J. Thomas Montgomery, Jr. Vice President and Controller of
Contran, Dixie Holding, National,
NOA, Southwest, VGI and Valhi;
Vice President of Dixie Rice.
Robert E. Musgraves General Counsel and Secretary of
Tremont. 1999 Broadway,
Suite 4300, Denver, Colorado 80202.
Dennis G. Newkirk Vice President and Controller of
NL. 3000 No. Sam Houston Parkway
East, Houston, Texas 77032.
Kenneth R. Peak Director of NL; President of Peak
Energy Advisors, Inc. (consulting).
2702 Albans, Houston, Texas 77005.
Douglas M. Simmons Vice President of Contran.
Glenn R. Simmons Vice Chairman of the Board and
Director of Contran, Dixie Holding,
National, NOA, VGI and Valhi;
Director of NL and Tremont;
Executive Vice President and
Director of Dixie Rice and
Southwest; Chairman of the Board,
Chief Executive Officer and Director
Keystone Consolidated Industries, Inc.
("Keystone") (steel rod and wire
products manufacturer).
Harold C. Simmons Chairman of the Board, Chief
Executive Officer, President and
Director of Contran, Dixie Rice, Dixie
Holding, National, NOA, Southwest, VGI
and Valhi; Chairman of the Board and
Director of NL; Director of Tremont.
Robert W. Singer Vice President of Contran and
Valhi; President and Chief
Operating Officer of Keystone.
Allen H. Smith President and Director of Dixie
Rice. 600 Pasquiere Street,
Gueydan, Louisiana 70542.
Richard A. Smith Treasurer of Dixie Rice.
600 Pasquiere Street, Gueydan,
Louisiana 70542.
Michael A. Snetzer Director of Valhi, NL and Tremont.
Thomas P. Stafford Director of Tremont; Co-founder of
Stafford, Burke and Hecker, Inc.
(consulting); Chairman of the Board
of Omega Watch Corporation of
America (watch manufacturer). 1006
Cameron, Alexandria,
Virginia 22314.
Avy H. Stein Director of Tremont; Managing
Director of Continental Equity
Capital Corporation and Continental
Illinois Venture Corporation
(investment funds). 231 South
La Salle, Chicago, Illinois 60697.
William C. Timm Vice President-Finance and Treasurer
of Contran, Dixie Rice, Southwest,
Dixie Holding, National, NOA, VGI and
Valhi; Vice President-Finance of Dixie
Rice and Southwest.
J. Walter Tucker, Jr. Director of Valhi; President,
Treasurer and Director of Tucker &
Branham, Inc. (mortgage banking,
insurance and real estate); Vice
Chairman of the Board and
Director Keystone.
Mark A. Wallace Vice President and Controller of
Tremont. 1999 Broadway,
Suite 4300, Denver, Colorado 80202.
Steven L. Watson Vice President and Secretary of
Contran, Dixie Rice, Dixie Holding,
National, NOA, Southwest, VGI and
Valhi.
Lawrence A. Wigdor Executive Vice President and
Director of NL. 3000 North Sam
Houston Parkway East, Houston,
Texas 77032.
Elmo R. Zumwalt, Jr. Director of NL; President of
Admiral Zumwalt & Consultants, Inc.
(consulting). 1500 Wilson
Boulevard, Arlington, Virginia
22209.
SCHEDULE C
Based upon ownership filings with the Securities and Exchange Commission or
upon information provided by the persons listed on Schedule B to this Statement,
such persons may be deemed to personally beneficially own Shares, as outlined
below:
<TABLE>
<CAPTION>
Share Information
Shares Options ESOP
Name Held 1 Held 2 Shares 3
<S> <C> <C> <C>
Kirby C. Adams -- -- --
Susan E. Alderton -- -- --
Eugene K. Anderson 100 10,000 1,329
Arthur H. Bilger -- 6,000 --
Richard J. Boushka -- -- --
F. Murlyn Broussard -- -- 945
Joseph S. Compofelice -- -- --
Norman S. Edelcup 12,000 6,000 --
Robert J. Frame 3,000 6,000 --
David B. Garten -- -- --
William J. Lindquist 7,250 83,000 2,680
J. Landis Martin 20,000 300,000 --
Andrew McCollam, Jr. -- -- 544
Harold M. Mire -- -- 1,123
J. Thomas Montgomery, Jr. 22,800 120,000 3,211
Robert E. Musgraves -- -- --
Dennis G. Newkirk -- 20,000 --
Kenneth R. Peak -- -- --
Douglas M. Simmons 36,700 -- 2,165
Glenn R. Simmons4 85,450 420,000 3,342
Harold C. Simmons5 77,000 560,000 3,342
Robert W. Singer 71,600 73,000 508
Allen H. Smith -- -- --
Richard A. Smith -- -- --
Michael A. Snetzer6 160,160 480,000 3,336
Thomas P. Stafford -- -- --
Avy H. Stein -- -- --
William C. Timm 10,600 225,000 3,338
J. Walter Tucker, Jr. 217,250 6,000 --
Mark A. Wallace 900 6,400 2,054
Steven L. Watson 15,600 124,000 2,999
Lawrence A. Wigdor -- -- --
Elmo R. Zumwalt, Jr. -- -- --
</TABLE>
____________________
[FN]
1 Includes restricted shares which each such person has the power to vote and
the right to receive dividends.
2 Represents Shares covered by options exercisable within 60 days of the date
of this Statement.
3 Represents vested beneficial interests in Shares allocated to such person's
participant account in The Valhi, Inc. Employee Stock Ownership Plan, as of
December 31, 1993.
4 The Reporting Persons understand the Shares indicated as held by Glenn R.
Simmons include 1,800 Shares held by Mr. Simmons' wife, of which 800 Shares are
held in a retirement account and 1,000 Shares are held in trust for the benefit
of their daughter, with respect to all of which beneficial ownership is
disclaimed by Mr. Simmons.
5 The Reporting Persons understand the Shares indicated as held by Harold C.
Simmons include 77,000 Shares held by Mr. Simmons wife, with respect to all of
which beneficial ownership is disclaimed by Mr. Simmons. Mr. Simmons may be
deemed to possess indirect beneficial ownership of the Shares set forth in Item
5 (a) of this Statement, held by other Reporting Persons. Mr. Simmons disclaims
beneficial ownership of all such Shares.
6 The Reporting Persons understand the Shares indicated as held by Michael A.
Snetzer include 2,000 Shares held in an account for which Mr. Snetzer has
investment authority and 9,000 Shares held in an account for his son of which he
is custodian, with respect to all of which beneficial ownership is disclaimed by
Mr. Snetzer.
EXHIBIT 1
CREDIT AGREEMENT
Dated: January 30, 1987
The Parties: CONTRAN CORPORATION, a Delaware corporation
("Contran"), NATIONAL CITY LINES, INC., a
Delaware corporation ("National City"), the
principal place of business and address of
both being 4835 LBJ Freeway, Suite 600,
Dallas, Texas 75244;
HAROLD C. SIMMONS and THE 1964 SIMMONS TRUST,
as Guarantors, the address of both being
4835 LBJ Freeway, Suite 600, Dallas,
Texas 75244; and
UNITED STATES NATIONAL BANK OF OREGON, a
national banking association ("U.S. Bank"),
whose address is c/o Corporate Banking
Division (BB-12), 309 S.W. Sixth Avenue, Post
Office Box 4412, Portland, Oregon 97208.
WITNESSETH:
WHEREAS Contran and National City desire to have a $15 million revolving
line of credit, convertible to a term loan, for operating purposes, and
WHEREAS Harold C. Simmons and the 1964 Simmons Trust, which may be deemed
to control the Borrowers, are willing to guarantee such credit, and
WHEREAS U. S. . Bank is prepared to provide a revolving line of credit
aggregating $15 million, convertible to a term loan, on the bases of the
representations, warranties, and covenants herein made, receipt of guaranty and
the security to be granted and pledged hereunder to secure repayment of those
credit facilities,
NOW, THEREFORE, it, is agreed:
ARTICLE I. DEFINITIONS
Section 1. Certain Defined Terms. As used herein:
"Borrower" means either of Borrowers.
"Borrowers" means Contran and National City, jointly and severally.
"Business Day" means a day on which U.S. Bank is open for business at the
above-stated address.
"Closing" means January 30, 1987, or as soon thereafter as is practicable
under the circumstances.
"Collateral Agreement" means the collateral agreement in the form of
Exhibit B.
"Collateral Documents" means the Note, Collateral Agreement, and all
additional documents required by U.S. Bank pursuant hereto to secure repayment
of the credit facilities hereunder provided.
"Default Rate" means a rate of interest per annum equal to 2 percent over
the Prime Rate.
"ERISA" means the Employee Retirement Income Security Act of 1974. as
amended.
"Financial Statements" means the consolidated balance sheets of (i)
Contran, (ii) National City and (iii) LLC, each as of their fiscal years ended
1984, 1985, and 1986, and consolidated statements of income and retained
earnings of Contran, National City and LLC for the fiscal years ended on such
dates.
"Guaranty" means the guaranty in the form of Exhibit C.
"Guarantors" mean Harold C. Simmons and the 1964 Simmons Trust.
"Laws" means all ordinances, statutes, rules, regulations, orders,
requirements, injunctions, writs, or decrees of any government or political
subdivision or agency thereof, or any court or similar entity established by any
thereof.
"LLC" means LLC Corporation, a Delaware corporation, or any successor
corporation by merger or consolidation.
"Market Value of the Stock" means, from time to time, the product of the
number of shares of Stock and the closing price for the Stock as reported in the
Wall Street Journal.
"Note" means the note in the form of Exhibit A.
"Obligations" means the obligations of Borrowers:
(a) To pay the principal of, interest on, and fees for all amounts loaned,
advanced, and paid hereunder in accordance with the terms of this Agreement and
of the Note, and to satisfy all of their other liabilities to U.S. Bank, whether
hereunder or otherwise, whether now-existing or hereafter incurred, matured or
unmatured, direct or contingent, joint or several, including any extensions,
modifications, or renewals thereof and substitutions therefor; and
(b) To repay to U.S. Bank all amounts advanced by U.S. Bank hereunder or
otherwise pursuant to the Collateral Documents or Laws on behalf of Borrowers.
"Person" means any individual, corporation, partnership, association,
joint-stock company; trust, unincorporated organization, joint venture, court,
or government, or political subdivision or agency thereof.
"Prime Rate" means the interest rate per annum computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days which is publicly
announced and quoted from time to time as the prime or base lending rate of U.S.
Bank. Prime Rate is a term only of convenient reference and the use of such term
is not a representation, express or implied, as to the lowest or "best" rate of
interest charged to the largest and most credit worthy customers by U.S. Bank.
"Records" means correspondence, memoranda, tapes, discs, papers, books, and
other documents, or transcribed information of any type, whether expressed in
ordinary or machine language.
"Revolving Line of Credit" means the line of credit described in Section
2.01.
"Revolving Line of Credit Termination Date" shall mean February 1, 1988,
provided that if U.S. Bank grants Borrowers' request for an extension pursuant
to Section 2.02(a) hereof, it shall mean February 1, 1989.
"Stock" means the common stock of LLC pledged by Borrowers pursuant hereto.
"Subsidiary" means, from time to time, any corporation of which any
Borrower owns, directly or indirectly, more than 50 percent of the voting stock
or which is consolidated with any Borrower for financial reporting purposes,
provided, however, that, except for purposes of Sections 4.08 and 5.07, no
corporation whose total assets individually represent less than five percent
(5%) of Contran's total assets on a consolidated basis, and collectively with
other such corporations represent less than fifteen percent (15%) of Contran's
total assets on a consolidated basis, shall be deemed to be a "Subsidiary"
hereunder.
"Term Loan" means the term loan described in Section 2.02(b).
ARTICLE II. DESCRIPTION OF THE
CREDIT FACILITY AND SECURITY
Section 2.01 Revolving Line of Credit. At Closing and on Business Days
thereafter, U.S. Bank will make available
to Borrowers a revolving line of credit aggregating a maximum of
$15 million at any one time, provided that U.S. Bank is not obligated to make
advances which, at the time such advances are requested, would result in
principal outstanding exceeding the lesser of (i) 40 percent of the
then-existing Market Value of the Stock or (ii) the $15 million maximum. IN the
event outstanding principal, at any time Obligations are outstanding, exceeds 50
percent of the Market Value of the Stock, Borrowers will either (i) pay such
excess on demand or (ii) deposit additional Stock with U.S. Bank as collateral
to satisfy the loan to value ratio. Prior to the maturity of the Revolving Line
of Credit, Borrowers may borrow, repay, and reborrow.
Borrowers shall request each advance by giving U.S. Bank notice thereof
specifying the proposed date and amount. Such notice shall be received by U.S.
Bank no later than 10:00 a.m., Portland time on the date the advance is desired.
Advances shall each be in the minimum amount of $100.000 or multiples of
$100.000 in excess thereof
Oral requests for advances may be made by persons authorized by Borrowers
and shall irrevocably commit Borrowers to accept such advances. Each time an
oral request for advance is made, the person making the request shall provide
U.S. Bank with sufficient information to enable U.S. Bank's responsible officer
to identify the requester as authorized.
U.S. Bank shall make such funds available to Borrowers by depositing them
in such accounts as designated in writing by Borrowers.
Borrowers will pay interest in arrears monthly at the Prime Rate on the
first day of each calendar month on the actual daily amount outstanding, through
and including February 1, 1988 (and, if the Revolving Line of Credit is renewed,
through February 1, 1989), as more specifically described in the Note.
Section 2.02 Maturity Dates; Conversion to Term Loan.
(a) The maturity date of the initial Revolving Line of Credit is February
1, 1988, provided that, by notice to U.S. Bank given not later than December 15,
1987, Borrowers may request a one-year extension of the Revolving Line of Credit
which U.S. Bank, in its sole discretion, may grant or deny. Borrowers will cease
to have the right to secure advances under the Revolving Line of Credit on and
after the Revolving Line of Credit Termination Date.
(b) Subject to Section 3.02 hereof, the amount of the Obligations
outstanding on the Revolving Line of Credit Termination Date shall convert to a
Term Loan, with interest payable quarterly in arrears at the Prime Rate plus one
percent (1%) beginning the following May 1, and on the first day of each of the
three quarters thereafter, on the actual daily amount outstanding, with
principal payable in four equal installments on the same dates, and with all
Obligations due and maturing one year after the Revolving Line of Credit
Termination Date, all as more specifically described in the Note. Although
Borrowers may make prepayments without penalty, any voluntary prepayments and
any payments necessary due to fluctuation in Stock value (see Section 2.01) will
not reduce the minimum amount of quarterly principal payments due on the Term
Loan pursuant to the Note and the preceding sentence.
Section 2.03 Use of Proceeds. All amounts advanced are to be used by
Borrowers for general corporate purposes.
Section 2.04 Repayment Security.
(a) Borrowers shall each secure repayment of the Obligations in accordance
with the Note by execution and delivery at Closing of the Collateral Agreement
and delivery of the Stock
(b) Guarantors shall guarantee the Obligations by execution and delivery at
Closing of the Guaranty.
(c) Additionally, Borrowers will take such other steps and execute such
additional documents as U.S. Bank may reasonably request to perfect or
effectuate U.S. Bank's security interest in the Stock.
Section 2.05 Interest Rates.
(a) Interest on amounts advanced on the Revolving Line of Credit and
outstanding under the Term Loan will be calculated with reference to the Prime
Rate, as more specifically set forth in the Note. Each time the Prime Rate shall
change, the effective interest rate payable by Borrowers, to the extent
determined by reference to the Prime Rate, shall change contemporaneously with
such change in the Prime Rate, without notice to Borrowers.
(b) Interest shall be payable at the Default Rate on all amounts not Paid
when due until payment is received.
Section 2.06 General Rules for Payment. All payments shall be made in U.S.
funds immediately available in Portland, Oregon, and received by U.S. Bank no
later than 1:00 p.m., Portland time, on the due date thereof at U.S. Bank's
Corporate Banking Division. Any payment not made by that time shall be deemed
received on the next Business Day and interest shall accrue until that day.
Whenever any payment is due on a day which is not a Business Day, the payment
day shall be the next succeeding Business Day and interest shall accrue until
and be payable upon such next succeeding Business Day.
Section 2.07 Commitment Fee. The commitment fee to be paid by Borrowers for
the Revolving Line of Credit is to be paid quarterly in arrears on May 1, 1987,
and on the same day of each of the three quarters thereafter, equal to
three-eighths of one percent per annum on the average amount of the line of
credit unused in the preceding quarter. If renewed pursuant to Section 2.02(a)
hereof, a commitment fee payable at the same rate and on the same terms shall be
paid on May 1, 1988, and on the first day of each of the three quarters
thereafter.
Section 2.08 Reimbursement of Expenses. Upon demand, Borrowers will
reimburse U.S. Bank for all reasonable out-of-pocket expenses and legal fees
incurred by U.S. Bank in connection with documenting and closing the Obligations
and preparation of this Agreement, the Collateral Documents, and the Guaranty.
ARTICLE III. CONDITIONS PRECEDENT
The obligation of U.S. Bank to advance funds hereunder is subject to the
following conditions precedent:
Section 3.01 Documents Required Prior to First Borrowing. Borrowers and
Guarantors shall have delivered to U.S. Bank at Closing, in form and substance
satisfactory to U.S. Bank, the following, each duly executed:
(a) The Note, Collateral Agreement, Guaranty, and the
Stock.
(b) A completed Form U-1, in the form of Exhibit D.
(c) A certified copy of resolutions of the boards of directors of Borrowers
authorizing the execution, delivery, and performance of this Agreement and the
Collateral Documents, identifying persons authorized to request loan advances
hereunder and identifying the account or accounts to which loan advances shall
be deposited, and a certified copy of action by the 1964 Simmons Trust
authorizing execution, delivery, and performance of the Guaranty.
(d) A certificate of the corporate secretary of each of Borrowers as to the
incumbency and signatures of the officers of each of Borrowers signing this
Agreement and the Collateral Documents and a certificate of a duly authorized
representative of the 1964 Simmons Trust as to the incumbency and signature of
the person signing this Agreement and the Guaranty.
(e) A written opinion of Messrs. Kirkland and Ellis, Borrowers' and
Guarantors' counsel, dated the date of Closing and addressed to U.S. Bank, in
form satisfactory to U.S. Bank, to the effect that:
(1) Borrowers are corporations duly organized, validly existing, and in
good standing under the Laws of Delaware and are qualified to transact business
and are in good standing in those jurisdictions where the nature of business or
property owned by them requires qualification, except where the failure so to
qualify would not have a materially adverse effect on the business or financial
conditions of Borrowers;
(2) Borrowers have the corporate power to execute and deliver this
Agreement, to borrow money hereunder, to grant the security interests in Stock
required hereunder, to execute and deliver the Collateral Documents, and to
perform their obligations hereunder and thereunder, and Guarantors have the
power to execute and deliver this Agreement and the Guaranty, and to perform
their Obligations hereunder and thereunder;
(3) All corporate action by Borrowers, and all action by Guarantors, and,
to the best knowledge of such counsel, all consents and approvals of any
Persons, necessary to the validity of this Agreement, the Collateral Documents,
and the Guaranty, has been duly taken and have been duly obtained, and this
Agreement and the Collateral Documents do not conflict with any provision of the
charter or bylaws of Borrowers, and this Agreement and the Guaranty do not
conflict with and are not in violation of instruments governing the existence
and powers of the 1964 Simmons Trust;
(4) This Agreement and the Collateral Documents have been duly executed by
and each is a valid and binding obligation of each Borrower, and this Agreement
and the Guaranty have been duly executed by and each is a valid and binding
obligation of each of Guarantors, in each case enforceable in accordance with
their terms, except as the binding nature thereof may be limited by bankruptcy,
insolvency, reorganization, or similar Laws affecting creditors' rights
generally and except as the enforceability thereof may be limited by general
principles of equity (whether considered in a proceeding at law or in equity):
(5) Such counsel is without any knowledge of any matters contrary to the
representations and warranties contained in Article IV hereof.
Section 3.02 Future Borrowings. At the time of each advance pursuant to the
Revolving Line of Credit, and at the time of conversion to the Term Loan:
(a) No Event of Default shall have occurred and be continuing, and no event
shall have occurred and be continuing that, with the giving of notice or passage
of time or both, would be an Event of Default;
(b) No material adverse change shall have occurred in the financial
condition of Borrowers or Guarantors since the date of this Agreement; and
(c) All Collateral Documents and the Guaranty shall be in full force and
effect.
Borrowers and Guarantors shall be deemed to have confirmed to U.S. Bank the
continued truth of the representations and warranties set forth in Article IV
hereof (except for the last sentence of Section 4.06) by requesting an advance
hereunder.
Section 3.03 Legal Matters. At the time of Closing, all legal matters
incidental hereto shall be satisfactory to Messrs. Miller, Nash, Wiener, Hager &
Carlsen, U.S. Bank's counsel.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
To induce U.S. Bank to enter into this Agreement, Borrowers and Guarantors
make the following representations and warranties to U.S. Bank:
Section 4.01 Corporate Structure and Power. Each of Borrowers is a
corporation duly organized, validly existing, and in good standing under the
laws of its jurisdiction of incorporation or organization and has the lawful
power to own its respective properties and to engage in the respective
businesses it conducts, and each is duly qualified and in good standing as a
foreign corporation in the jurisdictions wherein the nature of the business
transacted by it or property owned by it makes such qualification necessary,
except where the failure so to qualify would not have a materially adverse
effect on the business or financial condition of Borrowers.
Section 4.02 Authorization. Each of Borrowers has the power and authority
to enter into and perform this Agreement and the Collateral Documents, and to
incur Obligations, and has taken all corporate action necessary to authorize the
execution, delivery, and performance of this Agreement and the Collateral
Documents. Guarantors have the power and authority to enter into and perform the
Guaranty and have taken all action necessary to authorize the execution,
delivery, and performance thereof.
Section 4.03 Valid Obligations. This Agreement and the Collateral Documents
when executed and delivered will be valid and binding obligations of each of
Borrowers and, in the case of the Guaranty, of the Guarantors, enforceable in
accordance with their respective terms.
Section 4.04 Title to Stock; Priority. Each of Borrowers has good and
marketable title to the Stock pledged by it hereunder, subject to no security
interest, encumbrance, lien, or claim of any third person. U.S. Bank will
receive and continue to have a first priority security interest in and to the
Stock. The Market Value of the Stock is not less than $45 million at the date
hereof.
Section 4.05 Violation of Other Agreements. The execution, delivery, and
performance of this Agreement, the Collateral Documents, and the Guaranty will
not immediately, with the passage of time, the giving of notice, or both:
(a) Violate the respective charter or bylaws of Borrowers, or violate the
instruments forming or governing the Harold C. Simmons Trust, or violate in any
material respect any Laws or violate or result in a default under any material
contract, agreement, or instrument to which any of Borrowers or Guarantors is a
party or by which any of Borrowers or Guarantors or their assets are bound; or
(b) Result in the creation or imposition of any security interest in, or
lien or encumbrance upon, any of the material assets of any of Borrowers or
Guarantors, except in favor of U.S. Bank.
Section 4.06 Financial Statements. Financial Statements, including any
schedules and notes pertaining thereto, (a) have been prepared in accordance
with generally accepted accounting principles consistently applied and, (b)
fully and fairly present the financial condition of the entities covered at the
dates thereof and the results of operations for the periods covered thereby.
There have been no material adverse changes in the consolidated financial
condition or business of the entities covered from their fiscal year ended in
1986, to the date hereof.
Section 4.07 Consents and Approvals. Each consent, approval, or
authorization of, or filing, registration, or qualification with, any Person
that is required to be obtained or effected by any of Borrowers or Guarantors in
connection with the execution and delivery of this Agreement, the Collateral
Documents, and the Guaranty, or the undertaking or performance of Obligations,
has been duly obtained or effected.
Section 4.08 ERISA Matters. All Defined Benefit Pension Plans, as defined
in ERISA, of Borrowers and each
Subsidiary meet, as of the date hereof, the minimum funding standards of Section
302 of ERISA, and no Reportable Event or Prohibited Transaction, as defined in
ERISA, has occurred with respect to any such Plan.
Section 4.09 Truth of Representations. No representation or warranty by
Borrowers or Guarantors contained herein or in any certificate or other document
furnished by Borrowers or Guarantors pursuant hereto contains any untrue
statement of material fact or omits to state a material fact necessary to make
such representation or warranty not misleading in light of the circumstances
under which it was made.
Section 4.10 Survival. All the representations and warranties set forth in
this Article are true and, except where such representations and warranties
speak as of a specific date, will be true at Closing and shall be true until all
Obligations are satisfied in full.
ARTICLE V. AFFIRMATIVE COVENANTS
Borrowers and Guarantors do hereby covenant and agree with U.S. Bank that, so
long as any part of the Obligations remains outstanding, each will comply (and
cause each other to comply) with the following affirmative covenants:
Section 5.01 Use of Proceeds. Borrowers will use the advances under the
Revolving Line of Credit and proceeds of the Term Loan only for the purposes set
forth in Section 2.03, and will furnish U.S. Bank such evidence as it may
reasonably require with respect to such use.
Section 5.02 Delivery of Financial Information and Reports. As to (i)
Contran, on a consolidated basis, (ii) National City, on a consolidated basis,
and (iii) LLC, on a consolidated basis, Borrowers will furnish to U.S. Bank:
(a) Quarterly Financial Information. Within 45 days for LLC, and 60
days for Contran and National City, after the close of each fiscal quarter
in each year (other than the quarter coinciding with the end of such
entity's fiscal year), (i) a statement of stockholders' equity and of
changes in financial position for such quarter; (ii) income statements for
such quarter; and (iii) balance sheets as of the end of such quarter--all
in reasonable detail, subject to year-end audit adjustments and certified
by the president or a vice-president of such entity as having been prepared
in accordance with generally accepted accounting principles consistently
applied.
(b) Annual Financial Information. Within 90 days* after the close of
each fiscal year (i) a statement of stockholders' equity and of changes in
financial position for such fiscal year; (ii) income statements for such
fiscal year; and (iii) balance sheets as of the end of such fiscal
year--all in reasonable detail, including all supporting schedules and
comments; the statements and balance sheet of LLC to be audited by an
independent certified public accounting firm, certified by such accountants
to have been prepared in accordance with generally accepted accounting
principles consistently applied, except for any inconsistencies explained
in such certificate, and not qualified or containing any disclaimer of
opinion or adverse opinion; and the statements and balance sheets of
Contran and National City to be certified by the president or a
vice-president of such entity as having been prepared in accordance with
generally accepted accounting principles consistently applied.
(c) Contemporaneously with each quarterly and year-end financial
report required by the foregoing paragraphs (a) and (b), a certificate of
the president or a vice-president of each Borrower stating that he has
individually reviewed the provisions of this Agreement and the Collateral
Documents and that a review of the activities of such Borrower during such
year or quarterly period, as the case may be, has been made by him or under
his supervision with a view to determining whether such Borrower has
fulfilled all its obligations under this Agreement and the Collateral
Documents and that, to the best of his knowledge, such Borrower has
observed and performed each undertaking contained in this Agreement and the
Collateral Documents and is not in default in the observance or performance
of any of the provisions hereof and thereof or, if such Borrower shall be
so in default, specifying all such defaults and events of which he may have
knowledge.
(d) Reports Required by Laws. Promptly after the filing of the same,
copies of all periodic reports and proxy statements that LLC files with the
Securities and Exchange Commission pursuant to the requirements of the
Securities Exchange Act of 1934.
Section 5.03 Inspection Rights. Borrowers and Guarantors will, when
reasonably requested so to do, make available for inspection by duly authorized
representatives of U.S. Bank any of their Records, and will furnish U.S. Bank
all reasonably requested information regarding their business affairs and
financial condition within a reasonable time after the written request therefor.
* for LLC, and 120 days for Contran and National City.
Section 5.04 Compliance with Laws and Contracts. Borrowers and their
Subsidiaries and the 1964 Simmons Trust-will take all reasonably necessary steps
to preserve their existence and franchises, provided, however, that this
provision shall not prohibit (i) mergers, consolidations or business
combinations (collectively, "Combinations") between Subsidiaries; (ii)
Combinations in which the surviving entity shall be a Subsidiary following such
Combination or (iii) Combinations of Subsidiaries and a Borrower in which the
Borrower is the surviving entity. Borrowers and their Subsidiaries and
Guarantors will comply in all material respects with all present and future Laws
applicable to them in the operation of their respective businesses and all
material agreements and contracts to which they are subject.
Section 5.05 Payment of Indebtedness. Borrowers and their Subsidiaries and
Guarantors will pay when due (or within applicable grace periods) all material
indebtedness due third Persons, except when the amount thereof is being
contested in good faith by appropriate proceedings and with adequate reserves
therefore being set aside on their books.
Section 5.06 Notice of Material Change or Default. Guarantors and Borrowers
will give immediate notice to U.S. Bank of (a) any litigation or proceeding in
which any of them is a party if an adverse decision therein would require them
to pay over more than $5,000,000 or deliver assets the value of which exceeds
such sum (whether or not the claim is considered to be covered by insurance),
(b) the institution of any other suit or proceeding involving any of them that
might materially and adversely affect their operations, financial condition,
property, or business, or (c) the occurrence of any Event of Default or of any
fact, condition, or event that only with the giving of notice or passage of time
or both could become an Event of Default, or of the failure of any of them to
observe any of their respective commitments hereunder.
Section 5.07 ERISA Compliance. Borrowers and their Subsidiaries will fund
all their Defined Benefit Pension Plans, as defined in ERISA, in accordance with
no less than the minimum funding standards of Section 302 of ERISA and promptly
after learning of such, advise U.S. Bank of the occurrence of any Reportable
Event or Prohibited Transaction, as defined in ERISA, with respect to any such
Plan.
Section 5.08 Stock. In order to maintain the corpus of the Stock
collateral, Borrowers will promptly deliver to U.S. Bank as additional
collateral for the Obligations any stock distributable to Borrowers by virtue of
stock dividends, distributions, splits, spin-offs, split-ups, reclassifications,
combinations of shares, or similar rearrangements, or in respect of any
consolidation, merger, exchange of stock or other corporate reorganization
attributable to the Stock.
Section 5.09 Indemnity. Borrowers and Guarantors will indemnify U.S. Bank
and hold it harmless from and against all liabilities, damages and reasonable
out-of-pocket costs and expenses (including reasonable fees and disbursements of
counsel) in connection with any investigative, administrative or judicial
action, suit or proceeding in which U.S. Bank is designated a party or is
compelled to participate relating to or arising out of the use of the proceeds
advanced hereunder for the purpose of acquiring equity securities of any Person,
provided that in no event shall U.S. Bank have the right to be indemnified
hereunder for its own negligence or willful misconduct as determined by a court
of competent jurisdiction.
ARTICLE VI. NEGATIVE COVENANTS
Borrowers and Guarantors do hereby covenant and agree with U.S. Bank that,
so long as any part of the Obligations remains outstanding, they will comply and
they will cause any of their Subsidiaries to comply with the following negative
covenant:
Section 6.01 No False Statements. None of Borrowers or Guarantors will
furnish U.S. Bank any certificate or other document that will contain any untrue
statement of material fact or that will omit to state a material fact necessary
to make it not misleading in light of the circumstances under which it was
furnished.
ARTICLE VII. DEFAULT
Section 7.01 Events of Default. The occurrence of any one or more of the
following events shall constitute an Event of Default" hereunder:
(a) Borrowers shall fail to pay when due any installment of principal or
interest or fee payable under this Agreement or the Collateral Documents and
such failure shall continue for a period of five Business Days.
(b) Borrowers or Guarantors shall fail to comply in any material respect
with the negative covenant in Article VI hereof
(c) Borrowers or Guarantors shall fail to observe or perform any other
covenant or obligation to be observed or performed by them under this Agreement,
the Guaranty, or the Collateral Documents, and such failure shall continue for
ten Business Days after (i) notice of such failure from U.S. Bank or (ii) any of
Borrowers or Guarantors has actual knowledge of such failure; provided, however,
that if the failure is of such a nature that it cannot be cured within the
ten-day period, the failure shall not be an Event of Default if Borrowers or
Guarantors begin to cure the failure within the ten-day period and thereafter
proceed with reasonable diligence and in good faith to correct the failure as
soon as practicable.
(d) Any of Borrowers, Guarantors, or any Subsidiary shall fail to pay when
due any material indebtedness to any third Persons and such failure shall
continue beyond any applicable grace period, or any other material Event of
Default shall exist under any agreement governing material indebtedness of any
of Borrowers, Guarantors, or any Subsidiary and such event of default shall
continue beyond any applicable cure period.
(e) Any Financial Statement, representation, warranty, or certificate made
or furnished by Borrowers or Guarantors to U.S. Bank in connection with this
Agreement, or as inducement to U.S. Bank to enter into this Agreement, or in any
separate statement or document to be delivered hereunder to U.S. Bank, shall be
materially false, incorrect, or incomplete when made.
(f) Either of Borrowers or any Subsidiary or either of Guarantors shall
admit its inability to pay its debts as they mature, or shall make an assignment
for the benefit of creditors.
(g) Proceedings in bankruptcy, or for reorganization of either of Borrowers
or any Subsidiary or either of Guarantors, or for the readjustment of its debts,
under the Bankruptcy Code, as amended, or any part thereof, or under any other
Laws, whether state or federal, for the relief of debtors, now or hereafter
existing, shall be commenced by either of Borrowers or any Subsidiary or either
of Guarantors, or shall be commenced against either of Borrowers or any
Subsidiary or either of Guarantors and shall not be discharged within 90 days of
their commencement.
(h) A receiver or trustee shall be appointed for either of Borrowers or any
Subsidiary or either of Guarantors or for any substantial part of their
respective assets, or any proceedings shall be instituted for the dissolution or
the full or partial liquidation of either of Borrowers or any Subsidiary, and
such receiver or trustee shall not be discharged within 90 days of his
appointment, or such proceedings shall not be discharged within 90 days of his
appointment, or such proceedings shall not be discharged within 90 days of their
commencement.
(i) Either of Borrowers or any Subsidiary or either of Guarantors shall
suffer final judgments for payment of money aggregating in excess of $5,000,000
in any fiscal year and shall not discharge the same within a period of 30 days
after entry unless, pending further proceedings, execution has not been
commenced or, if commenced, has been effectively stayed.
(j) The validity or enforceability of this Agreement, the Collateral
Documents, or the Guaranty shall be contested by either of Borrowers, either of
the Guarantors, or any stockholder of the Borrowers, or any such party shall
deny that it has any or further liability or obligation hereunder or thereunder.
Section 7.02 Acceleration. All Obligations, whether hereunder or otherwise,
shall immediately become due and payable without further notice or action of any
kind (i) upon the occurrence of an Event-of Default specified in paragraphs (f),
(g) or (h) above, (ii) upon the occurrence of an Event of Default specified in
paragraph (a) above upon expiration of the grace period, and (iii) upon the
occurrence of any other Event of Default upon notice to Borrowers and expiration
of any applicable cure periods.
Section 7.03 Remedies. After any acceleration, as provided for in Paragraph
7.02, U.S. Bank shall have, in addition to the rights and remedies given it by
this Agreement and the Collateral Documents, all those allowed by all applicable
Laws, including, but without limitation, the Uniform Commercial Code. Without
limiting the generality of the foregoing, U.S. Bank may immediately, without
demand of performance and without other notice (except as specifically required
by this Agreement or the Collateral Documents) or demand whatsoever to
Borrowers, all of which are hereby expressly waived, sell at public or private
sale or otherwise realize upon, the whole or, from time to time, any part of the
Stock, or any interest which Borrowers may have therein. After deducting from
the proceeds of sale or other disposition of Stock all expenses (including all
reasonable expenses for legal services), U.S. Bank shall apply such proceeds
toward the satisfaction of Obligations. Any remainder of the proceeds after
satisfaction in full of Obligations shall be distributed as required by
applicable Laws. Notice of any sale or other disposition shall be given to
Borrowers at least five Business Days before the time of any intended public
sale or of the time after which any intended private sale or other disposition
of Stock is to be made, which Borrowers hereby agree shall be reasonable notice
of such sale or other disposition. At any such sale or other disposition, U.S.
Bank may, to the extent permissible under applicable Laws, purchase the whole or
any part of the Stock, free from any right of redemption on the part of
Borrowers, which right is hereby waived or released.
Section 7.04 Rights of Set-Off. Upon the occurrence and during the
continuance of any Event of Default, U.S. Bank is hereby authorized at any time
and from time to time, to set-off and apply all deposits of every kind at any
time held and other indebtedness at any time owing by U.S. Bank to or for the
credit or the account of any of Borrowers or Guarantors against all of the
obligations of Borrowers now or hereafter existing to U.S. Bank, irrespective of
whether or not U.S. Bank shall have made any demand under this Agreement, the
Guaranty or the Collateral Documents and although such obligation may be
unmatured. U.S. Bank agrees promptly to notify Borrowers and Guarantors after
any such set-off, provided that the failure to give such notice shall not affect
the validity of such set-off. The rights of U.S. Bank under this section are in
addition to other rights and remedies which U.S. Bank may have.
ARTICLE VIII. MISCELLANEOUS
Section 8.01 Construction. The provisions of this Agreement shall be in
addition to those of the Collateral Documents.
Section 8.02 Further Assurance. From time to time, Borrowers and Guarantors
will execute and deliver to U.S. Bank such additional documents and will provide
such additional information as U.S. Bank may reasonably require to carry out the
terms of this Agreement and be informed of Borrowers' and Guarantors' status and
affairs
Section 8.03 Enforcement and Waiver. U . S . Bank shall have the right at
all times to enforce the provisions of this Agreement, the Collateral Documents,
and the Guaranty in strict accordance with the terms hereof and thereof,
notwithstanding any conduct or custom on the part of U.S. Bank in refraining
from so doing at any time or times. The failure of U.S. Bank at any time or
times to enforce its rights under such provisions, strictly in accordance with
the same, shall not be construed as having created a custom in any way or manner
contrary to specific provisions of this Agreement or as having in any way or
manner modified or waived the same. All rights and remedies of U.S. Bank are
cumulative and concurrent and the exercise of one right or remedy shall not be
deemed a waiver or release of any other right or remedy.
Section 8.04 Notices. Any notices or consents required or permitted by this
Agreement (other than oral notices permitted by Section 2.01) shall be in
writing and shall be deemed delivered if delivered in person or if sent by
certified mail, postage prepaid, return receipt requested, or telegraph, to the
address stated above or at such new address as is provided by written notice
hereunder. Notices to Borrowers shall be sent to the attention of Michael A.
Snetzer, and a copy of any notice sent to Borrowers or Guarantors shall be sent
to Mr. John Garrett, Kirkland & Ellis, 1999 Broadway, Denver, Colorado 80202.
Section 8.05 Applicable Law. The substantive laws of the state of Oregon
shall govern the construction-of this Agreement and the rights and remedies of
the parties hereto.
Section 8.06 Binding Effect, Assignment and Entire Agreement. This
Agreement shall inure to the benefit of, and shall be binding upon, the
respective heirs, successors, and permitted assigns of the parties hereto.
Borrowers and Guarantors have no right to assign any of their rights or
obligations hereunder without the prior written consent of U.S. Bank. This
Agreement, and the documents executed and delivered pursuant hereto, constitute
the entire agreement between the parties, and may be amended only by a writing
signed on behalf of each party hereto.
Section 8.07 Severability. If any provision of this Agreement shall be held
invalid under any applicable Laws, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid
provision, and, to this end, the provisions hereof are severable.
Section 8.08 Counterparts. This Agreement and the Collateral Documents may
be executed in any number of counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute but one and the same
instrument.
Section 8.09. Attorneys' Fees. In the event any suit or action is filed to
enforce or interpret any of the terms of this Agreement, the Collateral
Documents, or the Guaranty, the prevailing party or parties shall be entitled to
recover from the other party or parties such sum as the court may determine
reasonable as attorneys' fees, at trial or on any appeal, in addition to all
other sums provided by law.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
BORROWERS:
CONTRAN CORPORATION NATIONAL CITY LINES, INC.
By _____________________ By
Title: Title:
GUARANTORS: THE 1964 SIMMONS TRUST
By
Harold C. Simmons Title: Sole Trustee
LENDER:
UNITED STATES NATIONAL BANK
OF OREGON
By
Title: Vice President
PROMISSORY NOTE
$15,000,000 January 30, 1987
For value received and pursuant to a Credit Agreement of even date
(providing for a $15 million revolving and term loan) the undersigned "Maker",
jointly and severally, promise to pay to the order of UNITED STATES NATIONAL
BANK OF OREGON, a national banking association ("U.S. Bank"), Corporate Banking
Division (BB-12), 309 S.W. Sixth Avenue, P.O. Box 4412, Portland, Oregon 97208,
all amounts advanced to Maker by U.S. Bank hereunder and remaining unpaid,
together with interest at the rates set forth herein on the amounts from time to
time outstanding. In the absence of manifest error, U.S. Bank's records shall be
conclusive at all times of the amount advanced and outstanding hereunder.
Revolving Period. From the date hereof through and including the Revolving
Line of Credit Termination Date (the "Revolving Period"), Maker promises to pay
interest on the unpaid balance hereof at the Prime Rate. Interest shall be
calculated on the actual daily amount outstanding and shall be paid on the first
day of each and every calendar month through and including the Revolving Line of
Credit Termination Date, in arrears. U.S. Bank shall have no-obligation to make
further loan advances on or after the Revolving Line of Credit Termination Date.
Term Period. The amount outstanding on the Revolving Line of Credit
Termination Date shall on that date be converted into a term loan payable in
four quarterly installments due beginning on May 1 following the Revolving Line
of Credit Termination Date and on the first day of each quarter thereafter. On
those payment dates, Maker promises to pay (a) interest on the actual daily
amount outstanding during the previous quarter, at the Prime Rate plus one
percent (1%) per annum, and (b) a principal payment in an amount equal to
twenty-five percent (25%) of the amount of indebtedness so converted.
Prepayments may be made at any time, but will not reduce subsequent minimum
principal payments due pursuant to the preceding sentence.
The maturity date of this note is one year following the Revolving Line of
Credit Termination Date, when all amounts advanced, accrued, or outstanding and
not paid shall be immediately due and payable without notice or demand.
Whenever any payment is due on a day which is not a Business Day, the
payment day shall be the next succeeding Business Day and interest shall accrue
until and be payable upon such succeeding Business Day.
Maker promises to pay interest at the Prime Rate plus two percent (2%) (the
"Default Rate") on all amounts not paid when due from the due date until paid.
The principal amount outstanding due hereunder from time to time may not
exceed fifty percent (50%) of the Market Value of the Stock, and U.S. Bank is
not required to make any advance which will result in the outstanding principal
balance of this loan exceeding the lesser of (a) forty percent (40%) of the
Market Value of the Stock or (b) $15,000,000. In the event principal outstanding
exceeds fifty percent (50%) of the Market Value of the Stock, Maker will
immediately deposit with U.S. Bank additional Stock to achieve compliance with
the loan to stock value ratio or pay the amount of such excess to U.S. Bank's
order. During the Revolving Period, this is a revolving line of credit and,
accordingly, the aggregate of amounts advanced and repaid over time may exceed
the line maximum even though no such excess will be allowed at any one time.
In the event this note is placed in the hands of an attorney or attorneys
for collection, Maker promises and agrees to pay U.S. Bank's reasonable
attorneys' fees and collection costs, even though no civil action is filed on
this note. If an action is filed, Maker promises to pay such additional sum as
the trial judge and any appellate court may adjudge reasonable as attorneys'
fees in the action, including any appeal, along with statutory costs and
disbursements and together with interest on said sums at the Default Rate from
the date of such judgment until paid.
The payment of amounts advanced hereunder is subject to a grace period of
five Business Days as set forth in Section 7.01(a) of the Credit Agreement.
All capitalized terms in this note, other than those defined herein, are
defined in the Credit Agreement.
If at any time any amount is outstanding under this note and a court of
competent jurisdiction determines that the Prime Rate or interest rate hereunder
exceeds the lawful maximum rate of interest, then there shall be charged instead
only the maximum rate of interest permitted by law (or by agreement of the
parties under law) during the period when such rate is deemed excessive
CONTRAN CORPORATION
By
(title)
NATIONAL CITY LINES, INC.
By
(title)
SUPPLEMENT TO CREDIT AGREEMENT
This Supplement to Credit Agreement is dated and effective as of January
31, 1989, and is by and among CONTRAN CORPORATION, a Delaware corporation
("Contran"), NATIONAL CITY LINES, INC., a Delaware corporation ("National
City"), HAROLD C. SIMMONS ("Mr. Simmons"), THE 1964 SIMMONS TRUST, an inter
vivos trust created by Mr. Simmons, as Grantor (the "Trust"), and UNITED STATES
NATIONAL BANK OF OREGON, a national banking association ("U. S. Bank").
RECITALS
A. The parties entered into a credit agreement dated January 30, 1987 (the
"Credit Agreement"), providing for a revolving line of credit to Contran and
National City aggregating a maximum of $15 million, convertible to a term loan,
to be used for general corporate purposes, the terms and conditions of the loan
being further evidenced by a promissory note (the "Promissory Note") of Contran
and National City to U. S. Bank, a collateral agreement from Contran-and
National City to U. S. Bank, and a guaranty from Mr. Simmons and the Trust to U.
S. Bank, all of which are sometimes collectively referred to herein as the "Loan
Documents."
B. Section 2.02 of the Credit Agreement provides for a maturity date
(referred to in the Credit Agreement and the Promissory Note as the "Revolving
Line of Credit Termination Date") for the revolving line of credit of February
1, 1988, and for the possibility of a one-year extension of the revolving line
upon the request of Contran and National City and the consent of U. S. Bank.
Section 2.02 of the Credit Agreement and the Promissory Note further provide for
conversion of the revolving line of credit to a term loan upon maturity of the
revolving line at the Revolving Line of Credit Termination Date.
C. Pursuant to Section 2.02 of the Credit Agreement, the written request of
Contran and National City dated December 8, 1987, and U. S. Bank's written
consent dated January 19, 1988, the Revolving Line of Credit Termination Date
was extended for one year to February 1, 1989.
D. Contran and National City have requested an additional extension of the
revolving line of credit to April 30, 1990, and U. S. Bank is willing to
accommodate the request.
AGREEMENT
It is hereby agreed that the Revolving Line of Credit Termination Date is
extended from February 1, 1989, to April 30, 1990. Subject to Section 3.02 of
the Credit Agreement, obligations outstanding on the extended April 30, 1990,
Revolving Line of Credit Termination Date shall convert to the term loan
provided in the Credit Agreement and the Promissory Note. Except as so amended
or supplemented, the terms of the Loan Documents shall continue in full force
and effect. This agreement may be executed in any number of counterparts, but
all counterparts shall constitute but one and the same instrument.
CONTRAN CORPORATION
By
Name:
Title:
NATIONAL CITY LINES. INC.
By
Name:
Title:
Harold C. Simmons
THE 1964 SIMMONS TRUST
By
Harold C. Simmons, Trustee
UNITED STATES NATIONAL BANK OF
OREGON
By
Janice T. Thede,
Vice President
SUPPLEMENT TO CREDIT AGREEMENT
Dated: April 25, 1990,
Among: CONTRAN CORPORATION, a Delaware corporation ("Contran"), whose address
is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway, Dallas, Texas
75240-2697,
NATIONAL CITY LINES, INC., a Delaware corporation ("National City"),
whose address is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway,
Dallas, Texas 75240-2697
HAROLD C. SIMMONS and THE 1964 SIMMONS TRUST ("Guarantors"), whose
address is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway, Dallas,
Texas 75240-2697, and
UNITED STATES NATIONAL BANK OF OREGON, a national bank ("U. S. Bank"),
whose address is c/o Corporate Banking Division (BB-12), 309 S. W.
Sixth Avenue, P. O. Box 4412, Portland, Oregon 97208.
Recitals
A. On or about January 30, 1987, and for valuable consideration,
Contran, National City, Guarantors and U. S. Bank entered into a credit
agreement dated as of January 30, 1987 (the "Credit Agreement"), under which U.
S. Bank provides a revolving line of credit aggregating $15,000,000 to Contran
and National City until February 1, 1988 (the "Revolving Line of Credit
Termination Date"). The initial Revolving Line of Credit Termination Date was
extended to February 1, 1989, pursuant to section 2.02(a).
B. On or about January 31, 1989, the Revolving Line of Credit Termination
Date was further extended to April 30, 1990.
C. Contran and National City have asked U. S. Bank to further extend the
Revolving Line of Credit Termination Date to April 30, 1991, and to release
Guarantors from liability under the Credit Agreement.
NOW, THEREFORE, for value, the current receipt and reasonable equivalence
of which are acknowledged:
1. The Revolving Line of Credit Termination Date as defined in the Credit
Agreement and the related note is hereby extended to April 30, 1991. Contran and
National City jointly, severally and unconditionally promise and agree to pay to
the order of U. S. Bank the principal of all loans outstanding under the line of
credit on or before the Revolving Line of Credit Termination Date as hereby
extended and to pay interest on the outstanding principal balance monthly in
arrears at the rate of interest publicly quoted by U. S. Bank from time to time
as its "prime" rate of interest.
2. U. S. Bank hereby releases Guarantors from liability under the Credit
Agreement and any guaranties delivered by Guarantors to U. S. Bank under the
Credit Agreement.
UNITED STATES NATIONAL BANK CONTRAN CORPORATION
OF OREGON
By ____________________________ By___________________________
Janice T. Thede, Vice President James H. Kauffman, Vice
President & Treasurer
NATIONAL CITY LINES, INC.
By _______________________
Eugene K. Anderson,
Vice President
SUPPLEMENT TO CREDIT AGREEMENT
Dated: April 25, 1991,
Among: CONTRAN CORPORATION, a Delaware corporation ("Contran"), whose address
is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway, Dallas, Texas
75240-2697,
NATIONAL CITY LINES, INC., a Delaware corporation ("National City"),
whose address is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway,
Dallas, Texas 75240-2697
HAROLD C. SIMMONS and THE 1964 SIMMONS TRUST ("Guarantors"), whose
address is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway, Dallas,
Texas 75240-2697, and
UNITED STATES NATIONAL BANK OF OREGON, a national bank ("U. S. Bank"),
whose address is c/o Corporate Banking Division (BB-12), 309 S. W.
Sixth Avenue, P. O. Box 4412, Portland, Oregon 97208.
Recitals
A. Contran, National City, Harold C. Simmons and the 1964 Simmons
Trust, and U.S. Bank are parties to a credit agreement dated as of January 30,
1987, as amended and supplemented January 31, 1989, and April 25, 1990 (the
"Contran Credit Agreement"), under which U. S. Bank provides a revolving line of
credit aggregating $15 million (the "Revolving Line of Credit") to Contran
and National City until April 30, 1991 (the "Revolving Line of Credit
Termination Date"). Harold C. Simmons ant the 1964 Simmons Trusts were released
as guarantors and deleted as parties to the Contran Credit Agreement in a
Supplement to Credit Agreement dated April 25, 1990.
B. Contran and National City have asked U. S. Bank to further extend the
Revolving Line of Credit Termination Date.
NOW, THEREFORE, for value, the current receipt and reasonable equivalence
of which are acknowledged:
1. The Revolving Line of Credit Termination Date as defined in the Contran
Credit Agreement and the related note 4 hereby extended to May 31, 1991.
2. Contran and National City Jointly, severally and unconditionally promise
and agree to pay to the order of U. S. Bank the principal of all loans
outstanding under the revolving Line of Credit on or before the Revolving Line
of Credit Termination Date, as hereby extended, according to the terms and
conditions of the Contran Credit Agreement and the related note as hereby
supplemented and to pay interest on the outstanding of interest publicly
announced by
3. Under Oregon agreements, promised and commitments made by a financial
institution after October 31, 1989 and other credit extensions which are not for
personal, family or household purposes or secured solely by the obligor's
residence must be in writing, express consideration and be enforceable.
UNITED STATES NATIONAL BANK CONTRAN CORPORATION
OF OREGON
By: __________________________ By _________________________
Janice T. Thede, Vice President James H. Kauffman,
Vice President
and Treasurer
NATIONAL CITY LINES, INC.
By _________________________
Eugene K. Anderson,
Vice President
SUPPLEMENT TO CREDIT AGREEMENT
Dated: May 8, 1991,
Among: CONTRAN CORPORATION, a Delaware corporation ("Contran"), whose address
is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway, Dallas, Texas
75240-2697.
NATIONAL CITY LINES, INC., a Delaware corporation ("National City"),
whose address is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway,
Dallas, Texas 75240-2697, and
UNITED STATES NATIONAL BANK OF OREGON, a national bank ("U.S.Bank"),
whose address is c/o National Corporate Banking Division (BB-12), 309
S. W. Sixth Avenue, P. O. Box 4412, Portland, Oregon 97208.
Recitals
A. Contran, National City, Harold C. Simmons and the 1964 Simmons
Trust, and U. S. Bank are parties to a Credit Agreement dated as of January 30,
1987, as amended and supplemented January 31, 1989, and April 25, 1990 (the
"Contran Credit Agreement"), under which U. S. Bank provides a revolving line of
credit aggregating $15 million (the "Revolving Line of Credit") to Contran and
National City until May 31, 1991 (the "Revolving Line of Credit Termination
Date"). Harold C. Simmons and the 1964 Simmons Trust were released as guarantors
and deleted as parties to the Contran Credit Agreement in a Supplement to Credit
Agreement dated April 25, 1990.
B. Contran and National City (collectively "Borrowers") have asked U. S.
Bank to further extend the Revolving Line of Credit Termination Date and to
allow them, if they so choose, to pay interest on loans (advances) made after
the date of this agreement at a rate of interest determined at a margin (spread)
over the rate at which U. S. Bank could fund such loans with "Eurodollars" taken
by U. S. Bank on the interbank offered rate market.
NOW, THEREFORE, for value, the current receipt and reasonable equivalence
of which are acknowledged:
1. The Revolving Line of Credit Termination Date as defined in the Contran
Credit Agreement and the related note is hereby extended to April .30, 1992.
2. Borrowers may borrow and reborrow under the Revolving Line of Credit in
a minimum increment of $1 million, and in multiples of $500,000 in excess of the
minimum increment, for periods of one month, two months, three months or sixth
months (but in no event will such period expire following the Revolving Line of
Credit Termination Date) at a rate which will be fixed for the period selected
by Borrowers at the time the loan is requested at a margin of 1.75 percent per
annum over the Adjusted Eurodollar Rate (as defined below). Any such loan under
the Revolving Line of Credit is hereinafter referred to as a "Eurodollar Loan."
Borrowers will obligate themselves for a Eurodollar Loan by delivering to
U. S. Bank a written notice, which shall be irrevocable, of the date and amount
of the proposed Eurodollar Loan and the repayment period selected by Borrowers.
This notice must be delivered to U. S. Bank by facsimile machine no later than
noon on the third banking day preceding the date of the proposed Eurodollar
Loan.
Borrowers jointly, severally and unconditionally promise and agree to repay
each and every Eurodollar Loan at the end of the period which Borrowers select
at the time of the loan and to pay interest in arrears at the end of that period
and, if the six-month period has been selected, then on the 90th day of the
period as well. Borrowers may prepay a Eurodollar Loan only if they also pay a
fee equal to the revenue which U. S. Bank reasonably estimates that it lost by
reason of such prepayment including the redeployment of such funds at a lower or
less profitable rate of interest.
The Adjusted Eurodollar Rate will be the average rate per annum (rounded up
to the nearest l/16th of 1 percent and based on a year of 360 days) quoted by
recognized dealers in New York to U. S. Bank at approximately 11 a.m. Portland,
Oregon time, on the second banking day preceding the date of the proposed loan
as the rate at which U. S. Bank is offered a Eurodollar deposit (a U. S.
dollar-denominated deposit in a foreign bank or the foreign branch or office of
a domestic bank) from another bank on the New York or London interbank offered
rate market in an amount and for a tenor equal to the amount and period selected
by Borrowers for the Eurodollar Loan and adjusted by U. S. Bank to take into
account the reasonable cost to U. S. Bank to maintain reserves, pay FDIC
insurance premiums, maintain adequate capital and to pay taxes, surcharges and
like impositions which are or may hereafter become applicable to Eurocurrency
liabilities under federal laws or regulations or the requirements or guidelines
of governmental agencies having jurisdiction over U. S. Bank.
If U. S. Bank actually funds a Eurodollar Loan by taking Eurodollars and it
thereafter becomes illegal or impracticable to hold such deposits, then
Borrowers will pay all reasonable costs associated with replacement of that
placement of funds, but in no event will Borrowers be responsible for the
payment of prepayment fees otherwise associated therewith.
3. Borrowers will pay interest quarterly in arrears at a margin of 1/2 of 1
percent per annum in excess of the publicly announced prime rate of U. S. Bank
on all loans under the Revolving Line of Credit other than Eurodollar Loans
during the "Revolving Period" (i.e., the period to and including the Revolving
Line of Credit Termination Date). During the "Term Period" (i.e., the period
after the Revolving Line of Credit Termination Date), the margined interest
rates payable by Borrowers will be increased by 1 percent per annum so that the
rate applicable to a Eurodollar Loan is 2.75 percent in excess of the Adjusted
Eurodollar Rate and the rate applicable to a "Prime Loan" (a loan to which the
publicly announced-prime rate is applicable) shall be 1.5 percent in excess of
the "Prime Rate" (the fully fluctuating, publicly announced prime rate of U. S.
Bank).
4. Borrowers jointly, severally and unconditionally promise and agree to
pay to the order of U. S. Bank the principal of all loans, including Eurodollar
Loans and Prime Loans, outstanding under the Revolving Line of Credit on or
before the Revolving Line of Credit Termination Date, as hereby extended,
according to the terms and conditions of the Contran Credit Agreement and the
related note as hereby supplemented.
5. This supplement may be signed and delivered in multiple counterparts,
but shall constitute but one agreement.
UNITED STATES NATIONAL BANK CONTRAN CORPORATION
OF OREGON
By By
Janice T. Thede, Vice President James H. Kauffman
Vice President and
Treasurer
NATIONAL CITY LINES, INC.
By
Eugene K. Anderson,
Vice President
SUPPLEMENT TO CREDIT AGREEMENT
Dated: May 21, 1992,
Among: CONTRAN CORPORATION, a Delaware corporation ("Contran"), whose address
is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway, Dallas, Texas
75240-2697,
NATIONAL CITY LINES, INC., a Delaware corporation ("National City"),
whose address is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway,
Dallas, Texas 75240-2697, and
UNITED STATES NATIONAL BANK OF OREGON, a national bank ("U.S.Bank"),
whose address is c/o Corporate Banking Division (BB-12), 309 S. W.
Sixth Avenue, P. O. Box 4412, Portland, Oregon 97208.
Recitals
A. Contran, National City, Harold C. Simmons and the 1964 Simmons
Trust, and U.S. Bank are parties to a credit agreement dated as of January 30,
1987, as amended and supplemented January 31, 1989, April 25, 1990, April 25,
1991, May 8, 1991, and April 21, 1992 (the "Contran Credit Agreement"), under
which U.S. Bank provides a revolving line of credit aggregating $15 million (the
"Revolving Line of Credit") to Contran and National City until May 31, 1992 (the
"Revolving Line of Credit Termination Date"). Harold C. Simmons and the 1964
Simmons Trust were released as guarantors and deleted as parties to the Contran
Credit Agreement in a Supplement to Credit Agreement dated April 25, 1990.
B. Contran and National City have asked U.S. Bank to further extend the
Revolving Line of Credit Termination Date.
NOW, THEREFORE, for value, the current receipt and reasonable equivalence
of which are acknowledged:
1. In consideration of payment of a fee of $37,500 to U.S. Bank and subject
to delivery of the certified copies required by section 3 of this supplement,
the Revolving Line of Credit Termination Date as defined in the Contran Credit
Agreement and the related note is hereby extended to May 31, 1993.
2. Section 2.02(a) of the Contran Credit Agreement is hereby amended to
provide that Contran may request additional extensions of the Line of Credit
Termination Date by giving notice thereof to U.S. Bank at least 60 days before
each Line of Credit Termination Date.
3. Contran and National City will provide to U.S. Bank on or before May 31,
1992, copies, certified as true, correct and in effect as of the date of the
certificate, of the resolutions of their respective boards of directors which
(a) authorize Contran and National City to borrow money from U.S. Bank, repay
money borrowed from U.S. Bank, with interest, fees and costs, when due, and
perform all other obligations they are to perform under the Contran Credit
Agreement, and (b) identify by name, title and specimen signature the officers
and other representatives who are authorized to request loans under the
Revolving Line of Credit.
4. Contran and National City jointly, severally and unconditionally promise
and agree to pay to the order of U.S. Bank the principal of all loans
outstanding under the Revolving Line of Credit on or before the Revolving Line
of Credit Termination Date, as hereby extended, according to the terms and
conditions of the Contran Credit Agreement and the related note as hereby
supplemented and to pay interest on the outstanding principal balance of such
loans monthly in arrears at either the prime rate or the adjusted Eurodollar
rate, as selected by Contran under the terms of the Contran Credit Agreement.
5. Under Oregon law, most agreements, promises and commitments made by a
financial institution after October 3, 1989, concerning loans and other credit
extensions which are not for personal, family or household purposes or secured
solely by the obligor's residence must be in writing, express consideration and
be signed by the financial institution to be enforceable.
UNITED STATES NATIONAL BANK CONTRAN CORPORATION
OF OREGON
By By
Janice T. Thede, Vice President William C. Timm, Treasurer
NATIONAL CITY LINES, INC.
By
Eugene K. Anderson,
Vice President
SUPPLEMENT TO CREDIT AGREEMENT
Dated: August 30, 1993,
Among: CONTRAN CORPORATION, a Delaware corporation ("Contran"), whose address
is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway, Dallas, Texas
75240-2697.
NATIONAL CITY LINES, INC., a Delaware corporation ("National City"),
whose address is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway,
Dallas, Texas 75240-2697, and
UNITED STATES NATIONAL BANK OF OREGON, a national bank ("U.S.Bank"),
whose address is c/o National Corporate Banking Division (BB-12), 309
S. W. Sixth Avenue, P. O. Box 4412, Portland, Oregon 97208.
Recitals
A. Contran, National City, Harold C. Simmons and the 1964 Simmons Trust,
and U.S. Bank are parties to a credit agreement dated as of January 30, 1987, as
amended and supplemented January 31, 1989, April 25, 1990, April 25, 1991, May
8, 1991, and April 21, 1992 and May 21, 1992 (the "Contran Credit Agreement"),
under which U.S. Bank provides a revolving line of credit aggregating $15
million (the "Revolving Line of Credit") to Contran and National City until May
31, 1993 (the "Revolving Line of Credit Termination Date"). Harold C. Simmons
and the 1964 Simmons Trust were released as
guarantors and deleted as parties to the Contran Credit Agreement in a
Supplement to Credit Agreement dated April 25, 1990.
B. Contran and National City have asked U.S. Bank to further extend the
Revolving Line of Credit Termination Date.
NOW, THEREFORE, for value, the current receipt and reasonable equivalence
of which are acknowledged:
1. The Revolving Line of Credit Termination Date as defined in the Contran
Credit Agreement and the related note is hereby extended to August 31, 1994.
2. Contran and National City jointly, severally and unconditionally promise
and agree to pay to the order of U.S. Bank the principal of all loans
outstanding under the Revolving Line of Credit on or before the Revolving Line
of Credit Termination Date, as hereby extended, according to the terms and
conditions of the Contran Credit Agreement and the related note as hereby
supplemented and to pay interest on the outstanding principal balance of such
loans monthly in arrears at either the prime rate or the adjusted Eurodollar
rate, as selected by Contran under the terms of the Contran Credit Agreement.
3. Under Oregon law, most agreements, promises and commitments made by a
financial institution after October 3, 1989, concerning loans and other credit
extensions which are not for personal, family or household purposes or secured
solely by the obligor's residence must be in writing, express consideration and
be signed by the financial institution to be enforceable.
UNITED STATES NATIONAL BANK CONTRAN CORPORATION
OF OREGON
By By
Janice T. Thede, Vice President William C. Timm, Treasurer
NATIONAL CITY LINES, INC.
By
Eugene K. Anderson,
Vice President
SUPPLEMENT TO CREDIT AGREEMENT
Dated: as of August 30, 1994,
Among: CONTRAN CORPORATION, a Delaware corporation ("Contran"), whose address
is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway, Dallas, Texas
75240-2697,
NATIONAL CITY LINES, INC., a Delaware corporation ("National City"),
whose address is Three Lincoln Center, Suite 1700, 5430 LBJ Freeway,
Dallas. Texas 75240-2697, and
UNITED STATES NATIONAL BANK OF OREGON, a national bank ("U. S. Bank"),
whose address is c/o National Corporate Banking Division (T-29), 111
S. W. Fifth Avenue, P. O. Box 4412, Portland, Oregon 97208.
Recitals
A. Contran, National City, Harold C. Simmons and the 1964 Simmons Trust,
and U. S. Bank are parties to a credit agreement dated as of January 30, 1987,
as amended and supplemented January 31, 1989, April 25, 1990, April 25, 1991,
May 8, 1991, and April 21, 1992, May 21, 1992, and August 30, 1993 (the Contran
Credit Agreement"), under which U. S. Bank provides a revolving line of credit
aggregating $15 million (the "Revolving Line of Credit") to Contran and National
City until August 31, 1994 (the "Revolving Line of Credit Termination Date").
Harold C. Simmons and the 1964 Simmons Trust were released as guarantors and
deleted as parties to the Contran Credit Agreement in a Supplement to Credit
Agreement dated April 25, 1990.
B. Contran and National City have asked U. S. Bank to further extend the
Revolving Line of Credit Termination Date.
NOW, THEREFORE, for value, the current receipt and reasonable equivalence
of which are acknowledged:
1. The Revolving Line of Credit Termination Date as defined in the Contran
Credit Agreement and the related note is hereby extended to August 31, 1995.
2. Contran and National City jointly, severally, and unconditionally
promise and agree to pay to the order of U. S. Bank the principal of all loans
outstanding under the Revolving Line of Credit on or before the Revolving Line
of Credit Termination Date, as hereby extended, according to the terms and
conditions of the Contran Credit Agreement and the related note as hereby
supplemented and to pay interest on the outstanding principal balance of such
loans monthly in arrears at either the prime rate or the adjusted Eurodollar
rate, as selected by Contran under the terms of the Contran Credit Agreement.
3. Contran and National City jointly, severally, and unconditionally
reaffirm that the applicable representations and warranties made in sections
4.01, 4.02, 4.03, 4.04 (except for the Market Value of the Stock), 4.05, 4.06
(only with respect to the last Financial Statements provided to Bank), 4.07, and
4.08 (as to Contran and National City only and as of the date hereof) of the
Contran Credit Agreement continue to be true and correct in all material
respects as of the date of this Supplement and represent and warrant that all
conditions precedent to the making of an advance under the Revolving Line of
Credit have been satisfied by Contran and National City or waived by U. S. Bank.
4. Contran and National City promise to pay all reasonable costs and
expenses incurred by U. S. Bank in connection with this Supplement, including
reasonable attorney fees and costs.
5. The Contran Credit Agreement, as heretofore modified, and all
instruments and documents issued pursuant thereto will continue in full force
and effect as modified by this Supplement. Contran and National City will issue
any additional instruments and documents that Bank may reasonably request in
order to effectuate the objectives of this Supplement.
6. This Supplement may be signed in one or more counterparts and all such
counterparts constitute but one agreement.
7. Under Oregon law, most agreements, promises and commitments made by a
financial institution concerning loans and other credit extensions which are not
for personal, family or household purposes or secured solely by the obligor's
residence must be in writing, express consideration and be signed by the
financial institution to be enforceable.
UNITED STATES NATIONAL BANK CONTRAN CORPORATION
OF OREGON
By By
Janice T. Thede, Vice President William C. Timm, Vice
President-Finance and
Treasurer
NATIONAL CITY LINES, INC.
By
Eugene K. Anderson,
Vice President
