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EXHIBIT 2.1b
NOTE REFINANCING AGREEMENT
THIS NOTE REFINANCING AGREEMENT ("Agreement") is executed as of October
21, 1999, by and among SIMULA, INC., an Arizona corporation ("Simula"), and a
wholly-owned subsidiary of Simula, CCEC CAPITAL CORP., an Arizona corporation,
f/k/a Coach and Car Equipment Corporation ("Seller"), and COACH AND CAR
EQUIPMENT CORP., a Nevada corporation, f/k/a Coach and Car Acquisition Corp.
("Purchaser"), and Purchaser's affiliated corporation, BEACON INDUSTRIES, INC.,
a Nevada corporation ("Beacon").
PRELIMINARY STATEMENT
I. The parties hereto entered into an Amended and Restated Asset
Purchase Agreement dated August 31, 1999 (the "Purchase Agreement").
II. Pursuant to Section 1.2 of the Purchase Agreement, Seller executed
a promissory note in the principal amount of Nine Million Nine Hundred Ninety
Six Thousand Dollars ($9,996,000) in favor of Purchaser maturing on October 15,
1999 ("Note").
III. Purchaser expects to obtain financing for its working capital
requirements and the parties have agreed to refinance the Note in accordance
with the provisions of this Agreement.
IV. Seller, Purchaser and Beacon have agreed to other terms and
conditions and to enter into certain agreements set forth hereafter.
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants of the parties herein set forth, it is agreed by the parties as
follows:
SECTION 1
REFINANCING NOTES
1.1 RECITAL OF REFINANCING COVENANTS. Purchaser anticipates shortly
obtaining third party financing to fund operations of the Business. In
anticipation of this financing, the parties hereto desire to amend the terms of
Purchaser's indebtedness to Seller under the Purchase Agreement as set forth in
this Agreement.
1.2 CANCELLATION OF NOTE; EXECUTION OF REFINANCING NOTES. Upon the
execution of this Agreement at Closing, the Note shall be cancelled and of no
effect and shall be replaced by the following: (i) Purchaser's promissory note
in the amount of One Million Nine Hundred Ninety Six Thousand Dollars
($1,996,000) with an annual interest rate of 8-1/2% payable in quarterly
interest installments on the terms and conditions as set forth in the form of
Exhibit A-1 attached hereto (the "Installment Note"); and (ii) Purchaser's
promissory note in the amount of Eight Million One Hundred Eighteen Thousand
Eight Dollars ($8,118,008) with an annual interest rate of 8-1/2% payable on the
terms and conditions as set forth in the form of Exhibit A-2 attached hereto
(the "Term Note," together with the Installment Note, the "Refinancing Notes").
The principal amount of the Term Note reflects a One Hundred Eighteen Thousand
Eight Dollar ($118,008) addition for accrued interest through October 20, 1999
under the Note that is cancelled and hereby refinanced. The Refinancing Notes
will mature on October 15, 2004. If Purchaser or Beacon directly or through
affiliates completes a public offering of securities before the maturity of the
Notes, subject only to any limitations set out in the Refinancing Notes, the
proceeds of such offering shall be first applied to repayment of the Refinancing
Notes thereby accelerating the maturity date. The Refinancing Notes shall be
secured by a Security Agreement on the Assets in the form of Exhibit B-1, by
pledges by (i) Beacon's controlling shareholder
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of the common stock held in Beacon, and (ii) Purchaser's controlling
shareholders of the common stock held in Purchaser, by such shareholders
evidence by a Security Agreement in the form of Exhibit B-2, and by a guarantee
of Beacon in the form of Exhibit B-3.
1.3 CLOSING. The refinancing and other activities provided for herein
shall take place at Purchaser's counsel's office in Phoenix, Arizona at 3:00
p.m. Pacific Standard Time on October 21st, 1999 (the "Closing"). At the
Closing:
(a) Purchaser shall deliver the Refinancing Notes to Seller;
(b) the parties shall execute and deliver all agreements and documents
contemplated in this Agreement to the appropriate parties;
(c) Seller will deliver an executed lien release on the Collateral, as
defined in the Security Agreement attached as Exhibit B-1, and on the common
stock of Purchaser and Beacon;
(d) Purchaser will execute and deliver to Seller a new lien on the
Collateral and Scott Miller will execute and deliver to Seller a new lien on
certain shares of the common stock of Purchaser and Beacon, in favor of Seller;
and
(e) Seller will execute and deliver the cancelled Note to Purchaser
within two (2) days of the Closing.
SECTION 2
NON COMPETITION AGREEMENT
2.1 AIRLINE RELATED MATERIALS. Purchaser covenants that it shall
cooperate with Seller and Seller's affiliated company under common control,
Artcraft Industries, Inc. ("Artcraft"), in identifying all materials related in
its possession to the commercial airline seating business, including without
limitation certifications, patterns, and customer information, and delivering
such materials to Artcraft's Atlanta facility, at Artcraft's sole expense, by
November 15, 1999.
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2.2 AIRLINE SEATING FABRIC. Purchaser covenants that it will provide
Artcraft with an accounting of all airline seating related fabric in its
possession by November 15, 1999. Purchaser agrees to enter into a sales or
consignment agreement with Artcraft with respect to such fabric, directly or on
consignment, pursuant to which Artcraft can purchase, in whole or in part, from
time to time, fabric at one hundred five percent (105%) of its value as recorded
on Purchaser's books at Closing. Artcraft shall be responsible for all freight
expenses with respect to such sales or consignments.
2.3 NON-COMPETITION AGREEMENT. Purchaser and Beacon shall,
contemporaneously with the execution of this Agreement, execute the
Non-Competition Agreement in the form of Exhibit C.
SECTION 3
CONDITION TO CLOSING
Purchaser and Seller shall use best efforts to negotiate a retention
bonus funding agreement and other agreements relating to Simula's payment of
certain retention obligations to former employees of Seller. Purchaser
acknowledges receipt from Seller of $400,000 to fund such retention obligations
of Seller and Simula and agrees to refund such amount to Seller in the event
Purchaser and Seller are unable to negotiate a retention bonus funding
agreement.
SECTION 4
ACKNOWLEDGMENT OF MILWAUKEE LEASE
AND CONSULTING OBLIGATIONS
Artcraft's obligations to the Gardner Group, Ltd. for Forty Four
Thousand Twenty Dollars ($44,020) for rent of Artcraft's Milwaukee facility for
the months of July and August and to Michael Gardner for consulting services in
the amount of Seven Thousand Five Hundred Dollars ($7,500) were included in the
trade accounts payable schedule given to Purchaser at the closing of the
Purchase Agreement. Accordingly, Purchaser and Beacon acknowledge and clarify
their financial responsibility for the past-due rent for the months of July and
August and for all of Mr. Gardner's consulting fees, as
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described in Mr. Skalmoski's letter of August 31, 1999 attached as Exhibit E.
Seller shall retain the obligation for rent payments for the month of September,
1999 through the termination of the lease.
SECTION 5
COVENANTS
5.1 PRESS RELEASES. The parties will cooperate in issuing any press
releases or otherwise making public statements with respect to the transactions
contemplated by this Agreement or by the Purchase Agreement as of the Closing.
5.2 TRANSITIONAL SERVICES. Seller will discontinue providing
transitional services to Purchaser, as described in Section 4.3(c) of the
Purchase Agreement, as of the Closing. Purchaser shall thereafter provide
services of a nature similar to those provided by Seller under Section 4.3(c) of
the Purchase Agreement to its employees. Purchaser shall remain liable for
expense reimbursements in accordance with Section 4.3(c) of the Purchase
Agreement for services provided thereunder by Seller.
5.3 FINANCING COVENANTS.
(a) Purchaser will obtain, within thirty (30) days of Closing,
financing from one or more lenders (the "Lender") to fund its operations and
capital requirements.
(b) Seller will agree, on reasonable and customary terms, to accept a
security interest subordinate to the Lender in the Assets purchased under the
Purchase Agreement.
(c) Purchaser will use its best efforts to accelerate the repayment of
its indebtedness under the Refinancing Notes to the maximum extent possible
under its lending arrangements with the Lender and will allow Seller to review
the terms of any proposed financing in order to propose additional refinancing
of the Refinancing Notes to achieve the foregoing.
5.4 BOARD OF DIRECTORS. Purchaser shall place a member of Simula's
senior management on its board of directors within ten (10) days of Closing,
and, in the event that Purchaser is merged into or becomes a subsidiary, parent,
or affiliated corporation under common control of Beacon, Beacon shall
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place a member of Simula's senior management on its board of directors within
ten (10) days of such merger or event giving rise to affiliated status.
5.5 TECHNOLOGY TRANSFER AND DEVELOPMENT AGREEMENT. Purchaser shall
negotiate in good faith to enter into a technology transfer and development
agreement with Simula Technologies, Inc., an affiliated corporation under common
control with Seller, on mutually agreeable terms and conditions.
SECTION 6
NO OTHER CHANGES
Except as specifically provided otherwise herein, this Agreement is
supplemental to, and not in lieu of, the terms and provisions of the Purchase
Agreement, and shall be interpreted consistently therewith. Other than those
changes or modifications expressly provided herein, no changes or modification
are made to the Purchase Agreement, including, without limitation, all exhibits,
agreements, documents, and covenants thereto relating. Nothing in this Agreement
shall be deemed to require the updating of any schedules to the Purchase
Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date first set forth above. SIMULA, INC., an Arizona corporation
By /s/ Brad Forst
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Its Executive Vice President
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CCEC CAPITAL CORP., an Arizona corporation,
formerly known as Coach and Car Equipment
Corporation
By /s/ Brad Forst
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Its President
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COACH AND CAR EQUIPMENT
CORP., a Nevada
corporation, formerly known
as Coach and Car
Acquisition Corp.
By /s/ Michael Feinstein
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Its Vice President
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BEACON INDUSTRIES, INC., a Nevada corporation
By /s/ Scott E. Miller
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Its Chairman
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