AMENDMENT TO AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this
"Amendment") is executed as of September 13, 2000, 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"). In the
Purchase Agreement, the purchase price for the assets was Ten Million Dollars
($10,000,000). In connection therewith, Purchaser executed a promissory note in
the principal amount of Nine Million Nine Hundred Ninety Six Thousand Dollars
($9,996,000) in favor of Seller maturing on October 15, 1999 (the "Original
Note") All capitalized terms not otherwise defined herein have the meaning set
forth in the Purchase Agreement.
II. The parties agreed to refinance the Original Note pursuant to a
Note Refinancing Agreement dated October 21, 1999 (the "Note Refinancing
Agreement"). Pursuant to the Note Refinancing Agreement, Purchaser executed two
promissory notes in the principal amount of One Million Nine Hundred Ninety Six
Thousand Dollars ($1,996,000) and Eight Million One Hundred Eighteen Thousand
Eight Dollars ($8,118,008), respectively, in favor of Seller (the "Refinancing
Notes").
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III. The parties desire to amend the purchase price in the Purchase
Agreement, as well as the Refinancing Notes, to adjust the purchase price to the
reduced price agreed upon by both parties.
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
AMENDMENT TO PURCHASE AGREEMENT
PURCHASE PRICE ADJUSTMENT. Section 1.2 of the Purchase Agreement is
restated in its entirety to read as follows:
"1.2 PURCHASE PRICE AND PAYMENT FOR COVENANTS. At closing,
Purchaser shall purchase the Assets for Four Million Sixty Two Thousand
Five Hundred Dollars ($4,062,500). The purchase price will be paid by
(i) Two Million Dollars ($2,000,000) in cash or cash equivalent, on or
before September 13, 2000, and (ii) Purchaser's promissory note in the
amount of Two Million Sixty Two Thousand Five Hundred Dollars
($2,062,500), in the form of Exhibit "A" attached hereto (the "Note").
The Note shall be secured by that certain Security Agreement between
Purchaser, as debtor, and Seller, as secured party, dated October 21,
1999, by that certain Guarantee of Beacon Industries, Inc. dated
October 21, 1999, and by a pledge by Beacon's controlling shareholder
of the common stock in Beacon held by such shareholder, evidenced by a
Pledge and Proxy Security Agreement in the form of Exhibit "B"."
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SECTION 2
NOTE REISSUANCE
CANCELLATION OF REFINANCING NOTES; EXECUTION OF NEW NOTE. Upon the
execution of this Amendment, the Refinancing Notes shall be cancelled and of no
effect and shall be delivered to Purchaser and replaced by Purchaser's
promissory note in the amount of Two Million Sixty Two Thousand Five Hundred
Dollars ($2,062,500) with an annual interest rate of 8 1/2% payable on the terms
and conditions as set forth in the form note attached as Exhibit A, maturing on
September 13, 2004 (the "New Note"). The New Note must be prepaid in certain
circumstances, in accordance with the terms of the New Note. The New Note shall
be secured by that certain Security Agreement between Purchaser, as debtor, and
Seller, as secured party, dated October 21, 1999 (the "Security Agreement"), by
that certain Guarantee of Beacon Industries, Inc. dated October 21, 1999 (the
"Guarantee"), and by the pledge by Beacon's controlling shareholder of the
common stock held in Beacon, through a Pledge and Proxy Security Agreement in
the form of Exhibit B. Seller hereby agrees that all Pledge and Proxy Security
Agreements entered into prior to the date hereof by Scott Miller with respect to
common stock in Purchaser held by Mr. Miller (including the Pledge and Proxy
Security Agreements dated August 31, 1999 and October 21, 1999) are hereby
terminated and deemed of no further force and effect.
SECTION 3
CLOSING
CLOSING. The purchase price amendment, cancellation of the Refinancing
Notes, the New Note issuance and all other activities provided for herein shall
take place at such time and place as mutually agreed upon by the parties (the
"Closing"). At the Closing:
(a) Purchaser shall pay or cause to be paid the sum of Two Million Dollars
($2,000,000) in cash to Simula;
(b) the parties shall execute and deliver to the appropriate parties all
agreements and documents contemplated in this Amendment;
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(c) Purchaser will execute and deliver the New Note to Simula;
(d) Purchaser will execute and deliver to Simula a new financing statement
on the Collateral (as defined in the Security Agreement) and Scott Miller will
execute and deliver to Simula a new financing statement on certain shares of the
common stock of Beacon;
(e) Seller will deliver the Refinancing Notes to Purchaser, marked
cancelled, null and void; and
(f) Seller will deliver to Purchaser the stock certificates of Purchaser
held in the name of Scott Miller, together with the corresponding stock powers
previously executed by Scott Miller with respect to such certificates.
SECTION 4
REPRESENTATIONS AND WARRANTIES
ALL PARTIES. Each party hereto represents and warrants the following:
(a) it has taken all actions required by law and its Articles of
Incorporation and Bylaws to authorize the execution and delivery of this
Amendment;
(b) neither the execution nor the delivery of this Amendment will (I)
violate any provision of such party's Articles of Incorporation or Bylaws; (ii)
violate or constitute a default under any agreement in which such party is a
party; or (iii) require the agreement or consent of any other party not already
given, or (iv) violate any material statute or laws or any judgment, decree,
order, regulation or rule of any court or governmental authority to which such
party is subject; and
(c) this Amendment is a valid and legally binding obligation of such party
enforceable in accordance with its terms except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws
relating to or affecting the rights and remedies of creditors generally and by
general principles of equity.
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SECTION 5
COVENANTS
PRESS RELEASES. Except as otherwise required by law, no party shall
issue any press releases or otherwise make public statements with respect to the
transactions contemplated by this Agreement or by the Purchase Agreement without
the prior consent of the other parties. The parties will cooperate in issuing
any such press release or statement.
SECTION 6
BRING-FORWARD OF SECURITY AGREEMENT AND GUARANTEE
6.1 SECURITY AGREEMENT. In connection with this Amendment, Purchaser
agrees that the indebtedness represented by the New Note shall be included in
the definition of "Indebtedness" within the Security Agreement, and Purchaser
reaffirms the provisions of the Security Agreement.
6.2 GUARANTEE. In connection with this Amendment, Beacon agrees that
the indebtedness represented by the New Note shall be included in the definition
of "Obligations" within the Guarantee, and Beacon reaffirms the provisions of
the Guarantee.
SECTION 7
TAXES
Seller and Purchaser agree that the transaction contemplated by this
Amendment constitutes a purchase price adjustment of the Assets pursuant to
section 108(e)(5) of the Internal Revenue Code of 1986, as amended.
SECTION 8
RATIFICATION
RATIFICATION. Other than those changes or modifications expressly
provided herein, no changes or modifications are made to the Purchase Agreement,
including, without limitation, all exhibits, agreements, documents, and
covenants thereto relating. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Purchase Agreement and, except as expressly modified and superseded by this
Amendment, the terms and provisions of the Purchase Agreement, the Security
Agreement, the Guarantee, and the Pledge and Proxy Security Agreement are
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ratified and confirmed and shall continue in full force and effect. Purchaser
and Seller hereby agree that the Purchase Agreement as amended hereby shall
continue to be legal, valid, binding and enforceable in accordance with its
terms. Nothing in this Agreement shall be deemed to require the updating of any
schedules to the Purchase Agreement. Other than as made herein, Seller and
Simula make no representations, warranties or covenants other than those set
forth in the Purchase Agreement and the Note Refinancing Agreement, which have
not been brought forward to the date of this Amendment.
SECTION 9
MISCELLANEOUS
9.1 COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
9.2 AMENDED REFERENCE. The Purchase Agreement and all other documents,
agreements and instruments executed in connection with the Purchase Agreement
now in existence or hereafter executed and delivered pursuant to the terms
hereof or the terms of the Purchase Agreement as amended hereby, are hereby
amended so that any reference to the Purchase Agreement shall mean a reference
to the Purchase Agreement as amended hereby.
[signature page follows]
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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 CCEC CAPITAL CORP., an Arizona corporation,
formerly known as Coach and Car Equipment
Corporation
By /s/ BRAD FORST By /s/ BRAD FORST
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Its EXECUTIVE VICE PRESIDENT Its PRESIDENT
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COACH AND CAR EQUIPMENT CORP., BEACON INDUSTRIES, INC., a Nevada corporation,
a Nevada corporation, formerly known as
Coach and Car Acquisition Corp.
By /s/ SCOTT MILLER By /s/ SCOTT MILLER
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Its CEO AND TREASURER Its PRESIDENT
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ACKNOWLEDGED BY:
GREENFIELD COMMERCIAL CREDIT, L.L.C,
a Michigan limited liability company
By DONALD G. BARR, JR.
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Its PRESIDENT
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