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EXHIBIT 2.1e
SECURITY AGREEMENT
DATE: October 21, 1999
DEBTOR: Coach and Car Equipment Corp., f/k/a Coach and Car
Acquisition Corp.
SECURED PARTY: CCEC Capital Corp., f/k/a Coach and Car Equipment
Corporation
a. DEFINITIONS. The following words shall have the following meanings
when used in this Security Agreement:
(1) Collateral. The word "Collateral" means all of Debtor's right,
title and interest in all the tangible and intangible assets purchased from
Coach and Car Equipment Corporation wheresoever situated, as conveyed to Debtor
or for the benefit of Debtors, under an agreement consummated on August 31, 1999
(the "Purchase Agreement"). Secured Party's interest extends to and includes,
but is not limited to, the Assets as described in the Purchase Agreement,
including without limitation, all property, plant, and equipment, patents, trade
secrets and other data of Coach and Car Equipment Corporation, including
proceeds from the sale of such assets pursuant to Section (c)(2), purchased by
Debtor pursuant to the Purchase Agreement.
(2) Indebtedness. Indebtedness includes all indebtedness and
liabilities of Debtor to Secured Party, due or to become due, whether or not now
existing or hereafter contracted for or arising, including, but not limited to:
(a) The indebtedness evidenced by the Installment Note and the
Term Note executed in favor of Secured Party, in an aggregate original
principal sum of Ten Million One Hundred Fourteen Thousand Eight
Dollars ($10,114,008) and any and all extensions, renewals,
refinancings and other amounts owing thereon (collectively, the
"Notes") dated October 21, 1999; and
(b) In the event of any proceeding to enforce the collection
of any of the Indebtedness, the reasonable expenses of retaking,
holding, preparing for sale, or otherwise disposing of any or all of
the Collateral upon any exercise by Secured Party of its rights under
this Security Agreement, and attorneys' fees, court costs and other
expenses in connection therewith.
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b. GRANT OF SECURITY INTEREST. For valuable consideration, Debtor
hereby grants to Secured Party a security interest in the Collateral, to secure
the Indebtedness and agrees that Secured Party shall have the rights stated in
this Security Agreement with respect to the Collateral in addition to all other
rights which Secured Party may have by law.
c. OBLIGATIONS OF DEBTOR. Debtor warrants to and covenants to Secured
Party as follows:
(1) Perfection of Security Interest. Debtor agrees to execute financing
statements, execute letters of assignment for patents, and to take whatever
other actions as are reasonably requested by Secured Party to perfect and
continue Secured Party's security interest in the Collateral. Debtor hereby
appoints Secured Party as its irrevocable attorney-in-fact for the purpose of
executing any documents necessary to perfect or to continue the security
interest granted in this Security Agreement. Secured Party may at any time, and
without further authorization from Debtor, file a copy of this Security
Agreement as a financing statement. Debtor will reimburse Secured Party for all
reasonable out-of-pocket expenses for the perfection and the continuation of the
perfection of Secured Party's security interest in the Collateral.
(2) Transactions Involving Collateral. Except for disposal of assets in
the ordinary course of business, Debtor shall not sell, offer to sell, or
otherwise transfer or dispose of the Collateral. Debtor shall not pledge,
mortgage, encumber or otherwise permit the Collateral to be subject to any lien,
security interest, encumbrance or charge, whether or not subordinate or junior
to the lien evidenced by this Security Agreement without the prior written
consent of Secured Party other than as required under the terms of any financing
arrangement with a senior lender ("Senior Lender"), as permitted under Section
5.3(b) of the Note Refinancing Agreement dated October 21, 1999 between the
parties (the "Note Refinancing Agreement"). Unless waived by Secured Party, all
proceeds from any disposition of the Collateral shall be held in trust for
Secured Party, and shall not be commingled with any other funds.
(3) Repairs. Debtor shall keep the Collateral in good condition and
repair (ordinary wear and tear excepted). Debtor will not commit or permit
damage to or destruction of any material part of the Collateral. Secured Party
and its designated representatives and agents shall have the right at all
reasonable times, and upon reasonable notice, to examine and inspect the
Collateral wherever located.
(4) Compliance With Governmental Requirements. Debtor shall materially
comply promptly with all laws, ordinances and regulations of all governmental
authorities applicable to the use of the Collateral. Debtor may contest in good
faith any such law, ordinance or regulation and withhold compliance during any
proceeding, including appropriate appeals, so long as Secured Party's interest
in the Collateral, in Secured Party's opinion, is not jeopardized.
(5) Maintenance of Insurance. Debtor shall procure and maintain fire,
casualty and liability insurance on a replacement basis naming Secured Party as
loss payee or additional insured, as appropriate, with respect to the
Collateral, in form, amounts, coverages and with insurance companies reasonably
acceptable to Secured Party. Subject to Debtor's obligations to Senior Lender,
Debtor, upon request of Secured Party, will deliver to Secured Party
certificates of coverage from each insurer containing a loss payable endorsement
to Secured Party and a stipulation that coverage will not be canceled or
diminished without a minimum of ten (10) days prior written notice to Secured
Party.
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(6) Application of Insurance Proceeds. Debtor shall promptly notify
Secured Party of any loss or damage to the Collateral in excess of Five Thousand
Dollars ($5,000). Secured Party may make proof of loss if Debtor fails to do so
within fifteen (15) days of the casualty. If an Event of Default has not
occurred, all proceeds of any insurance of the Collateral, including accrued
proceeds thereon, shall be used by Debtor to replace the Collateral in question.
If an Event of Default has occurred, all proceeds of any insurance of the
Collateral, including accrued proceeds thereon, shall be applied against the
Note.
(7) Insurance Reports. Debtor, upon request of Secured Party, shall
furnish to Secured Party reports on each existing policy of insurance showing
such information as Secured Party may reasonably request including the
following: (i) the name of the insurer; (ii) the risks insured; (iii) the amount
of the policy; (iv) the property insured; (v) the then current value on the
basis of which insurance has been obtained and the manner of determining that
value; and (vi) the expiration date of the policy.
d. DEBTOR'S RIGHT TO POSSESSION. Until an Event of Default (as defined
below), Debtor may have possession of and beneficial use of all of the
Collateral and may use it in any lawful manner not inconsistent with this
Security Agreement.
e. EXPENDITURES BY SECURED PARTY. If not discharged or paid when due,
Secured Party may discharge taxes, liens, security interests or other
encumbrances at any time levied or placed on the Collateral, may pay for
insurance with respect to the Collateral, and may pay for maintenance and
preservation of the Collateral. All such payments shall become a part of the
Indebtedness and shall be payable on demand. Such right shall be in addition to
any other rights or remedies to which Secured Party may be entitled on account
of default.
f. EVENTS OF DEFAULT. The following are Events of Default under this
Security Agreement:
(1) Default on Indebtedness. Debtor fails to make any payment when due
on the Indebtedness, subject to any grace period provided in the document
evidencing such indebtedness.
(2) Defective Collateralization. This Security Agreement or the
security interest granted herein at any time and for any reasons shall cease to
be in full force and effect or shall at any time not be perfected, or cease to
be perfected, unless caused by the fault, failure or omission of Secured Party.
(3) Insolvency. Making an assignment for the benefit of creditors of
Debtor, 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.
(4) Creditor Proceedings. Commencement of foreclosure, whether by
judicial proceeding, self-help, repossession or any other method, by any
creditor of Debtor against any of the property of Debtor, including, without
limitation, the Collateral. However, this subsection shall not apply in the
event of a good faith dispute by Debtor as to the validity or reasonableness of
the claim which is the basis of the foreclosure suit, provided that Debtor gives
Secured Party
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written notice of such claim and furnishes adequate reserves for the claim.
(5) Destruction or Impairment of Collateral. There shall occur any
material uninsured damage to or loss, theft or destruction of the Collateral, or
notwithstanding the maintenance of any insurance, if the value or validity of
any of the Collateral is materially impaired by virtue of the failure of Debtor
to comply with any state, federal or municipal rules or regulations.
(6) Cross Defaults. A default beyond any applicable grace or right to
cure periods by Debtor under any agreement, arrangement, covenant, undertaking,
or condition of (i) the Purchase Agreement between the parties including without
limitation the Subleases and Assignment and Assumption, as defined in the
Purchase Agreement, or (ii) the Note Refinancing Agreement including without
limitation the Pledge and Security Agreement, Guarantee, and Non-Competition
Agreement, as defined in the Note Refinancing Agreement.
g. RIGHTS OF SECURED PARTY. Upon an Event of Default, Secured Party
shall have all the rights of a secured party under the Uniform Commercial Code.
In addition and without limitation, Secured Party may exercise any one or more
of the following rights and remedies:
(1) Accelerate Indebtedness. Secured Party may, at its option, after
any applicable cure periods and without further demand, notice or legal process
of any kind, declare the entire Indebtedness immediately due and payable.
(2) Assemble Collateral. Secured Party may require Debtor to deliver
to Secured Party all or any portion of the Collateral and any and all documents
relating to the Collateral. Secured Party may require Debtor to assemble the
Collateral and make it available to Secured Party at a place to be designated by
Secured Party which is reasonably convenient to both parties. Secured Party
shall also have full power to enter upon the property of Debtor to take
possession of and remove the Collateral pursuant to due legal process.
(3) Sell the Collateral. Secured Party shall have full power to
sell, lease, transfer and otherwise deal with the Collateral or proceeds thereof
in its own name or that of Debtor. Secured Party may sell the Collateral at
public auction or private sale. Unless the Collateral threatens to decline
rapidly in value or is of a type customarily sold on a recognized market,
Secured Party will give Debtor reasonable notice of the time after which any
private sale or any other intended disposition of the Collateral is to be made.
The requirements of reasonable notice shall be met if such notice is given at
least ten (10) days before the time of the sale or disposition. All expenses
relating to the disposition of the Collateral, including without limitation the
expenses of retaking, holding, preparing for sale and selling the Collateral
shall become a part of the Indebtedness secured by this Security Agreement, and
shall be payable on demand, with interest at the default rate provided in the
Note from date of expenditure until repaid.
(4) Appointment of Receiver. Secured Party may have a receiver
appointed as a matter of right. The receiver may be an employee of Secured Party
and may serve without bond. All fees of the receiver and his attorney shall be
secured by this Security Agreement.
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(5) Obtain Deficiency. Secured Party may obtain a judgment for any
deficiency remaining on the Indebtedness due to Secured Party after application
of all amounts received from the exercise of the rights provided in this
Security Agreement.
(6) Other Rights and Remedies. In addition to Secured Party's rights
and remedies as a secured creditor under the provisions of the Uniform
Commercial Code, Secured Party shall have and may exercise any or all of the
rights and remedies it may have available at law, in equity or otherwise.
h. CUMULATIVE REMEDIES. All of Secured Party's rights and remedies,
whether evidenced by this Security Agreement or by any other writing, shall be
cumulative and may be exercised singularly or concurrently. Election by Secured
Party to pursue any remedy shall not exclude pursuit of any other remedy, and an
election to make expenditures or to take action to perform an obligation of
Debtor under this Security Agreement, after Debtor's failure to perform, shall
not affect Secured Party's right to declare a default and to exercise its
remedies.
i. WAIVER. Secured Party shall not be deemed to have waived any rights
under this Security Agreement unless such waiver is in writing and signed by
Secured Party. No delay or omission on the part of Secured Party in exercising
any right shall operate as a waiver of such right or any other right. A waiver
by any party of a provision of this Security Agreement shall not constitute a
waiver of or prejudice the party's right otherwise to demand strict compliance
with that provision or any other provision. No prior waiver, nor any course of
dealing between Secured Party and Debtor, shall constitute a waiver of any of
Secured Party's rights or Debtor's obligations as to any future transactions.
Whenever consent by Secured Party is required in this Security Agreement, the
granting of such consent by Secured Party in any instance shall not constitute
continuing consent to subsequent instances where such consent is required.
j. NOTICES. All notices, requests and demands to or upon the respective
parties hereto shall, in order to be effective, be in writing. Written notices
and written confirmations shall be either delivered by hand, deposited in the
U.S. mail, postage prepaid, sent by any air freight service, next day delivery
of which is guaranteed, telegraphed by the telegraph company or telexed, answer
back received, properly addressed as indicated below, or to such other address,
notice of which may be hereafter given to the respective parties hereto and/or
to any future holder of the Note by the respective addressee. All such notices,
requests or demands shall be deemed to have been duly given or made (a) when
delivered, if hand delivered; (b) five (5) days after being so deposited in the
U.S. Mail; and (c) one (1) business day after being so sent by air freight or so
telegraphed, telexed or transmitted via facsimile.
k. EXPENSES AND COSTS AND ATTORNEYS' FEES.
(1) Debtor shall reimburse Secured Party on demand for all its
expenses (including, but not limited to, reasonable attorneys' fees) of, or
incidental to: (i) any attempt to enforce any rights of Secured Party against
Debtor or any other person or entity which may be obligated to Secured Party by
virtue of this Security Agreement, including without limitation, any bankruptcy
proceedings and efforts to modify or vacate any automatic stay or injunction,
any account debtor, whether or not a lawsuit or proceeding is filed; and/or (ii)
any attempt to protect, collect, sell, liquidate or otherwise dispose of the
Collateral. All such sums and expenses shall constitute a portion of the
Indebtedness hereunder secured by the Collateral. All such sums shall be part of
the Indebtedness secured by this Security Agreement.
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(2) In the event of any litigation, contest, dispute, suit, proceeding
or action, whether instituted by Secured Party, Debtor or any other party,
person or entity) in any way relating to the Collateral, the Security Agreement,
or Debtor's affairs, the prevailing party in any such litigation, contest,
dispute, suit, proceeding or action, shall be entitled to recover its costs and
expenses incurred, including its reasonable attorney's fees, from the other
party. If the prevailing party is the Secured Party, all such sums shall become
part of the Indebtedness secured by this Security Agreement. If Debtor is the
prevailing party, all such sums shall be offset against the Indebtedness secured
by this Security Agreement.
l. INTERPRETATION. Caption headings in this Security Agreement are for
convenience purposes only and are not to be used to interpret or define the
provisions of this Security Agreement. If any provision of this Security
Agreement is held to be invalid, illegal or unenforceable by any court for any
reason, the remaining provisions of this Security Agreement shall nevertheless
be binding, and this Security Agreement shall be enforceable as if the void or
unenforceable provision or provisions had not been included in this Security
Agreement. Any terms used in this Security Agreement, including without
limitation, "account," "account debtor," "chattel paper," "document,"
"instrument," and "general intangible," which are not specifically defined in
this Security Agreement but are specifically defined in the Uniform Commercial
Code, shall have the meanings ascribed in the Uniform Commercial Code.
m. APPLICABLE LAW; JURISDICTION. This Security Agreement shall be
governed by and construed in accordance with the laws of the State of Arizona
and any dispute arising under this Security Agreement shall be brought in a
court of competent jurisdiction located within the State of Arizona.
n. SUCCESSOR INTERESTS. This Security Agreement shall be binding upon
and inure to the benefit of the parties, their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Security
Agreement on the date first above written.
DEBTOR:
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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SECURED PARTY:
CCEC Capital Corp., an Arizona corporation
formerly known as Coach and Car Equipment
Corporation
By /s/ Brad Forst
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Its Executive Vice President
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