1
EXHIBIT 2.1d
PROMISSORY NOTE
$8,118,008
October 21, 1999
1. Promise to Pay.
The undersigned, Coach and Car Equipment Corp. ("Maker") promises to
pay to the order of CCEC Capital Corp., in care of Simula, Inc, 2700 N. Central
Avenue, Phoenix, Arizona 85004, Attn: Scott Huson, or its successors ("Coach and
Car") the principal sum of Eight Million One Hundred Eighteen Thousand Eight
Dollars ($8,118,008). The principal amount of this Note reflects a One Hundred
Eighteen Thousand Eight Dollar ($118,008) addition for accrued interest through
October 20, 1999 under that Promissory Note dated August 31, 1999.
Coach and Car may transfer this Note, and Coach and Car or anyone who
takes this Note by transfer and who is entitled to receive payments under this
Note is called the "Noteholder."
2. Interest.
Interest will be charged on the unpaid principal until the full amount
is paid. Maker will pay interest at an annual rate of eight and one-half percent
(8-1/2%), compounded annually. Interest shall be calculated on the basis of a
360-day year and shall be computed on the actual number of days elapsed.
3. Payments.
3.1 Interest for the first year of the Note will be added to the
principal. Maker will make an initial payment of accrued interest on April 1,
2001. Thereafter, Maker will make semi-annual payments of accrued interest on
March 31 and September 30 of each year until the Maturity Date, as defined in
Section 4. On the Maturity Date, Maker will pay all principal and accrued
interest.
3.2 All payments hereunder shall be in accordance with the amortization
schedule attached hereto as Attachment A.
3.3 Maker shall have the right to prepay this Note in full or in part
without penalty.
4. Maturity.
Maker's obligations under the Note shall become fully due and payable
on October 15, 2004 (the "Maturity Date"). In the event Maker directly or
through its Affiliates (hereafter
2
defined) completes a private or public offering of debt or equity securities
before the Maturity Date, the proceeds of such offering shall be first applied
to repayment of the Note thereby accelerating the Maturity Date, subject only to
an Underwriting Limitation, as defined below. The term "Underwriting Limitation"
shall mean the following: (i) any reasonable and customary indebtedness
repayment limitation imposed on such proceeds by an underwriter pursuant to an
underwriting agreement; or (ii) in the event of a private offering with no
underwriter, an indebtedness repayment limitation imposed on offering proceeds
to which the Noteholder consents; provided however that the consent of the
Noteholder shall not be required on the first Two Million Dollars ($2,000,000)
cumulative offering proceeds obtained in the aggregate by Maker and its
Affiliates after the date of this Note. In the event that the proceeds applied
against this Note from any offering of securities is not sufficient to retire
the Note, then the proceeds of any subsequent offering shall be first applied to
repayment of the Note subject to an Underwriting Limitation. Subject to an
Underwriting Limitation, by its terms, any such offering will designate as part
of the use of proceeds the repayment of indebtedness represented by this Note,
and such repayment shall have priority over other applications of the proceeds.
In the event of any offering, the proceeds of such offering to be applied
against the Note shall be so applied within ten (10) days of Closing and the
funding of the offering. As used herein, Affiliates shall mean any corporation
controlling Maker or under the control of Maker or any corporation in which any
shareholder of Maker owns twenty percent (20%) or more of the outstanding common
stock, including but not limited to Beacon Industries, Inc.
5. Note Charges.
If a law which applies to this Note and which sets maximum loan charges
is finally interpreted so that the interest or other charges collected or to be
collected in connection with this Note exceed the permitted limits, then: (i)
any such Note charges shall be reduced by the amount necessary to reduce the
charge to the permitted limit; and (ii) any sums already collected from Maker
which exceeded permitted limits will be refunded to Maker. The Noteholder may
choose to make this refund by reducing the principal it owes under this Note or
by making a direct payment to Maker. If a refund reduces principal the reduction
will be treated as a partial prepayment.
6. No Waiver, Expenses.
6.1 Even if at a time when Maker is in default Noteholder does not
require Maker to pay immediately in full as directed below, Noteholder will
still have the right to do so if Maker is in default at a later time.
6.2 If Noteholder has required immediate payment in full as described
below, Noteholder will have the right to be reimbursed for all of its costs and
expenses to the extent not prohibited by applicable law. Those expenses include,
for example, reasonable attorneys' fees.
6.3 Presentment, demand, protest, notices of protest, dishonor and
non-payment of this Note and all notices of every kind except notices of payment
changes are hereby waived.
6.4 No single or partial exercise of any power under this Note shall
preclude other or further exercise thereof. The Noteholder shall at all times
have the right to proceed against any portion of any security held for this Note
in such order and in such manner as the
2
3
Noteholder may deem fit, without waiving any rights with respect to any other
security. No delay or omission on the part of the Noteholder in exercising any
right under this Note shall operate as a waiver of such right or of any other
right under this Note. The release of any party liable on this Note shall not
operate to release any other party liable on the Note.
6.5 Any payment hereunder otherwise due on a day that is not a business
day in Phoenix, Arizona shall be due on the immediately preceding business day.
7. Events of Default.
7.1 At the option of the Noteholder, the Note shall become immediately
due and payable unless otherwise stated, without notice or demand, upon the
occurrence at any time of any of the following events of default.
(a) Failure to pay when due any payment of principal or interest
due hereunder within five (5) days of the due date, or failure in the
performance or observance of any of the terms and conditions of the
Amended and Restated Asset Purchase Agreement, dated August 31, 1999,
or the Note Refinancing Agreement and continuance of such failure for
thirty (30) days after notice.
(b) Making an assignment for the benefit of creditors by Maker, or
the voluntary appointment (at the request of any such party or with the
consent of any such party) of a receiver, custodian, liquidator or
trustee in bankruptcy of any such party's property or the filing by any
such party of a petition in bankruptcy or other similar proceeding
under law for relief of debtors;
(c) Filing by Maker of a petition in bankruptcy or other similar
proceeding under the law for relief of debtors, or the involuntary
appointment of a receiver, custodian, liquidator or trustee in
bankruptcy of the property of any such party, and such petition or
appointment is not vacated or discharged within sixty (60) days after
the filing or making thereof.
(d) Any event of default under any financing arrangement between
Maker and any senior lender in connection with the Purchase Agreement
or the Note Refinancing Agreement.
7.2 If this Note is not paid when due, whether at maturity or by
acceleration, Maker promises to pay all costs of collection, including, without
limitation, reasonable attorneys' fees, and all expenses in connection with the
protection or realization of any collateral securing this Note or the
enforcement of any guaranty hereof incurred by the Noteholder on account of such
collection whether or not suit is filed, such costs and expenses shall include,
without limitation, all attorneys' fees and expenses incurred by the Noteholder
in connection with the collection of this Note.
8. Note Refinancing Agreement.
This Note is the "Term Note" referred to in, and is subject the terms
and provisions of, that certain Note Refinancing Agreement dated as of October
21, 1999, and the Security Agreement and Stock Pledge and Proxy Agreement
referenced therein.
3
4
9. Governing Laws; Jurisdiction.
This Note shall be constructed in accordance with the governed by laws
of the State of Arizona. Any dispute arising under this Note shall be brought in
a court of competent jurisdiction located within the State of Arizona.
COACH AND CAR EQUIPMENT CORP., a Nevada
corporation, formerly known as Coach and Car
Acquisition Corp.
By /s/ Michael Feinstein
------------------------------------------
Its Vice President
-----------------------------------------
Dated October 21, 1999
4
5
ATTACHMENT A
PAYMENT DATE PAYMENT AMOUNT
4/1/01 379,421.20
10/1/01 379,421.20
4/1/02 377,347.86
10/1/02 379,421.20
4/1/03 377,347.86
10/1/03 379,421.20
4/1/04 379,421.20
10/1/04 379,421.20
10/15/04 8,810,230.91
PURCHASER'S INITIALS ______
SELLER'S INITIALS ______
5