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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): October 4, 1999
METROTRANS CORPORATION
(Exact Name of Registrant as Specified in Charter)
Georgia 0-23808 58-1393777
(State or Other Jurisdiction (Commission File No.) (IRS Employer
of Incorporation) Identification No.)
777 Greenbelt Parkway, Griffin, Georgia 30223
(Address of Principal Executive Offices) (Zip Code)
(770) 229-5995
(Registrant's telephone number, including area code)
</PAGE>
<PAGE>
Item 5. Other Events
On September 30, 1999, the Registrant entered into a forbearance agreement
(the "Agreement") with Bank of America (the "Lender"), under which the Lender
agreed to forbear until October 15, 1999 from exercising its rights and
remedies with respect to the registrant's defaults of certain financial
covenants under the Registrant's amended secured revolving credit facility
with the Lender. Pursuant to the Agreement, the Registrant has agreed to
make certain loan payments to the Lender using proceeds from the sale of
assets which are not considered by management to be essential to the
Registrant's core business. Additionally, the Registrant has agreed to
engage an investment banking firm in order to explore strategic alternatives
with respect to securing additional investors as well as the possible sale
of the Company.
A copy of the Agreement is filed as Exhibit 10 to this Report and is
incorporated herein by reference. The foregoing is not a complete description
of the terms of the Agreement and is subject to and qualified in its entirety
by reference to the Agreement.
This report includes "forward-looking" statements within the meaning
of the Private Securities Litigation Reform Act of 1995. Such statements
involve known and unknown risks, uncertainties and other factors that could
cause the actual results of the Registrant to differ materially from the results
expressed or implied by such statements, including general economic and
business conditions, conditions affecting the Registrant's customers and
suppliers, competitor responses to the Registrant's products and services,
the overall market acceptance of such product and services, the costs and
availability of components, product scheduling, and other factors disclosed
in the Registrant's last filed Annual Report.
Item 7. Financial Statements and Exhibits
(c) Exhibits.
ExhibitNumber Description
- ------ -----------
10 Forbearance Agreement dated September 30, 1999, between the
Registrant and Bank of America, N.A., successor to
NationsBank, N.A.
99 Press Release, issued October 4, 1999
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
METROTRANS CORPORATION
(Registrant)
/s/ John G. Wallace
John G. Wallace
President and Chief Executive Officer
Date: October 5, 1999
</PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ ------------
10 Forbearance Agreement dated September 30, 1999, between the
Registrant and Bank of America, N.A., successor to
NationsBank, N.A.
99 Form of Press Release, dated October 4, 1999
</PAGE>
<PAGE>
FOR IMMEDIATE RELEASE
CONTACT:
John G. Wallace
President & CEO
Metrotrans Corporation
(770) 229-5995
METROTRANS ANNOUNCES NEW FORBEARANCE AGREEMENT
GRIFFIN, Ga., Oct. 4 /PRNewswire/ -- Metrotrans Corporation (Nasdaq:
MTRN) announced today that it had entered into a new forbearance agreement
with Bank of America on September 30, 1999, under which the lender has agreed
to forbear until October 15, 1999 from exercising its rights and remedies
under the secured revolving credit facility with respect to defaults existing
at July 4, 1999 as further described in the Company's 10-Q filing. Under the
terms of the new forbearance agreement, the Company has agreed to make
certain loan payments using proceeds from the sale of assets which are not
considered by management to be essential to the Company's core business.
Additionally, the Company has agreed to engage an investment banking firm in
order to explore strategic options related to securing additional investors
as well as possible sale of the business. This new forbearance agreement
will also provide both parties the additional time needed to continue current
discussions regarding a new secured revolving credit facility.
Metrotrans designs, manufactures and distributes shuttle and mid-size
touring buses through Company operated sales centers and independent
distributors in the United States and Canada and Puerto Rico. The Company
also distributes the Irizar Century full-size motorcoach in the United
States.
This press release includes ``forward-looking statements'' within the
meaning of the private Securities Litigation Reform Act of 1995. Such
statements involve known and unknown risks, uncertainties and other factors
that could cause the actual results of the Company to differ materially from
the results expressed or implied by such statements, including general
economic and business conditions, conditions affecting the Company's
customers and suppliers, and actual purchases of Company products by
customers, competitor responses to the Company's products and services, the
overall market acceptance of such products and services, the costs and
availability of components, product scheduling and other factors disclosed in
the Company's last filed Annual Report on Form 10-K. Accordingly, although
the Company believes that the expectations reflected in such forward-looking
statements are reasonable, there can be no assurance that such expectations
can be achieved.
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<PAGE>
FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT ("Agreement") is made as of the 30th day of
September, 1999, (the "Effective Date") among METROTRANS CORPORATION, a
Georgia corporation, ("Borrower"), BUS PRO, INC., a Georgia corporation,
("Guarantor") and BANK OF AMERICA, N.A., successor to NationsBank, N.A.
("Bank").
R E C I T A L S:
A. Borrower is indebted to Bank (the "Loan") as evidenced by that certain
Amended and Restated Note (the "Note"), dated as of April 12, 1999, in the
original principal amount of $23,000,000.00 and made payable to Bank and that
certain Loan Agreement Between Metrotrans Corporation and NationsBank, N.A.
(the "Loan Agreement"), dated as of September 5, 1997, as amended.
B. The Note is secured by, among other things, three Deeds to Secure Debt
and one Mortgage and Security Agreement executed by Borrower, related to
certain real property more particularly described therein (the "Property"),
recorded as follows:
(i) On April 14, 1999 in Book 3848, Page 013, public records of
Clayton County, Georgia ("Clayton Co. Deed to Secure Debt");
(ii) on April 16, 1999 in Book 1645, Page 259, public records of
Spalding County, Georgia ("Spalding Co. Deed to Secure Debt");
(iii) on April 15, 1999 in Book 3266, Page 322, public records of
Henry County, Georgia ("Henry Co. Deed to Secure Debt");
(iv) on April 15, 1999 in Book 5728, Page 3282, public records of
Orange County, Florida ("Orange Co. Mortgage")
(collectively, the "Mortgages").
C. The Note is further secured by those certain Security Agreements dated
April 12, 1999, executed by Borrower and Guarantor, covering certain property
more particularly described therein ("Security Agreements").
D. The Note is further secured by that certain Stock Pledge Agreement
("Stock Pledge") executed by Borrower pledging to Bank certain shares
("Pledged Securities") of capital stock described more fully therein.
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E. The Note is further secured by those certain UCC-1 Financing Statements
executed by Borrower and recorded as follows:
(i) In the Superior Court, Spalding County, Georgia, on April
13, 1999, file no. 126-1999-778;
(ii) Secretary of State for the State of Illinois on April 13,
1999, file no. 4019583;
(iii) Ohio Secretary of State on April 13, 1999, file no. APO133614;
(iv) Hamilton County, Ohio on May 3, 1999, file no. 99-88091;
(v) Texas Secretary of State on April 13, 1999, file no. 99-
073700;
(vi) Secretary of State for California on April 13, 1999 file no.
9911160423;
(vii) Secretary of State for Colorado on April 13, 1999 file no.
19992020867;
(viii)Tennessee Secretary of State on April 13, 1999, file no. 991-
001553;
(ix) Department of Treasury, State of New Jersey on April 20, 1999,
file no. 1900718;
(x) State of Maryland Dept. of Assessments and Taxation on April
13, 1999, file no. 1000007852000000;
(xi) Florida Secretary of State on April 13, 1999, file no.
990000080981;
F. The Note is further secured by those certain UCC-1 Financing Statements
executed by Guarantor and recorded as follows:
(i) In the Superior Court, Spalding County, Georgia, on April 13,
1999, file no. 126-1999-779;
(ii) Secretary of State for the State of Illinois on April 13,
1999, file no. 4019582;
(iii) Ohio Secretary of State on April 13, 1999, file no.
APO133613;
(iv) Hamilton County, Ohio on May 3, 1999, file no. 99-88092;
(v) Texas Secretary of State on April 13, 1999, file no. 99-073701;
(vi) Secretary of State for California on April 13, 1999 file no.
9911160426;
(vii) Secretary of State for Colorado on April 13, 1999 file no.
19992020868;
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(viii) Tennessee Secretary of State on April 13, 1999, file no. 991-
001554;
(ix) Department of Treasury, State of New Jersey on April 20, 1999,
file no. 1900720;
(x) State of Maryland Dept. of Assessments and Taxation on April
13, 1999, file no. 1000007851000000;
(xi) Florida Secretary of State on April 13, 1999, file no.
990000080982;
G. The Loan is guaranteed by Guarantor pursuant to that certain Guaranty
dated as of April 12, 1999 ("Guaranty").
H. The Note, the Loan Agreement, the Mortgages, the Security Agreements
and all other written documents executed in connection therewith, together
with any written renewals, modifications or extensions thereof are
collectively referred to as the "Loan Documents."
I. Borrower is in default under the Loan Documents. Borrower, Guarantor
and Bank have heretofore entered into that certain Forbearance Agreement dated
as of August 18, 1999, pursuant to which Bank agreed to forbear from
exercising its rights and remedies under the Loan Documents, subject to the
terms and conditions set forth therein, until September 30, 1999. Borrower
and Guarantor have requested that Bank continue to forbear from exercising its
rights and remedies under the Loan Documents for a period of time as specified
herein in reliance upon the covenants, representations, and warranties of
Borrower and Guarantor herein and for other consideration.
A G R E E M E N T:
For and in consideration of the mutual covenants herein, Ten Dollars ($10.00),
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Borrower and Bank agree as follows:
1. Recitals. The foregoing recitals are confirmed by the parties as true
and correct and are incorporated herein by reference. The recitals are a
substantive, contractual part of this Agreement.
2. No Waiver. The execution, delivery and performance of this Agreement
by Bank and the acceptance by Bank of performance of Borrower and Guarantor
hereunder (a) shall not constitute a waiver or release by Bank of any default
that may now or hereafter exist under the Loan Documents, (b) shall not
constitute a novation of the Loan Documents as it is the intent of the parties
to modify the Loan Documents as expressly set out herein and (c) except as
expressly provided in this Agreement, shall be without prejudice to, and is
not a waiver or release of, Bank's rights at any time in the future to
exercise any and all rights conferred upon Bank by the Loan Documents or
otherwise at law or in equity, including but not limited to the right to
institute foreclosure proceedings against the Property and/or institute
collection or arbitration proceedings against Borrower and/or Guarantor and/or
to exercise any right against any other person or entity not a party to this
Agreement.
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3. Forbearance. So long as this Agreement is not terminated earlier as
provided herein, Bank agrees not to foreclose or attempt to foreclose any
collateral securing the Note, institute suit or arbitration proceedings for
collection of the Note against Borrower, or exercise any other remedies
available to it under the Loan Documents or under applicable law from the
Effective Date until October 15, 1999 (the "Termination Date"). The period of
time from the Effective Date through the Termination Date shall be referred to
as the "Forbearance Period". If all defaults under the Note and Loan
Documents are not cured on or before the Termination Period or the earlier
termination of this Agreement, then Bank may seek to foreclose upon any
collateral for the Note and to exercise any other remedies to which Bank may
be entitled under the Loan Documents or applicable law to collect amounts due
under the Note or other Loan Documents. Borrower and Guarantor agree that
neither Borrower nor Guarantor will, during the Forbearance Period, initiate
any action of any kind against Bank with respect to the Note, exercise any
remedy available under the Loan Documents or otherwise, or make any type of
demand upon Bank with respect to the indebtedness evidenced by the Note. As a
condition to such forbearance, Borrower covenants and agrees to engage on or
before October 11, 1999 an investment banker or financial advisor reasonably
acceptable to Bank for the express purpose of assisting Borrower in
structuring a proposal for refinancing or otherwise satisfying the
indebtedness secured by the Loan Documents.
4. Payments.
(a) Borrower agrees to pay to Bank $500,000.00 prior to the Termination
Date, to be applied to reduce the outstanding unpaid principal balance of the
Note (the "Principal Paydown"). Upon such Principal Paydown the Commitment
(as defined in the Loan Documents) shall be permanently reduced from
$22,330,000.00 to $21,830,000.00. Borrower further agrees to pay to Bank
contemporaneously with the execution of this Agreement $12,950.00 to be
applied to the costs incurred to date related to conducting appraisals of the
Property and other collateral, and $1,500.00 of Bank's attorneys' fees and
expenses related to this Agreement. Borrower further agrees to reimburse Bank
prior to the Termination Date for Bank's attorneys' fees and expenses,
including without limitation the fees and expenses of The Recovery Group,
incurred related to the Agreement, the Loan Documents, the Property and other
collateral. Borrower further covenants and agrees to make payments as
provided under the Note and Loan Documents subsequent to the date hereof.
(b) Borrower and Bank acknowledge and agree that Borrower has
contracted with American Eagle Airlines, Inc. for the sale of certain property
currently pledged to secure the Loan Documents for an estimated sale price of
approximately $900,000.00, and Borrower agrees to remit $500,000.00 to Bank in
connection with such sale and as a condition to the release of Bank's security
interest in such property, which sum may be applied toward the Principal
Paydown required in Section 4 (a) hereof. Bank agrees to allow Borrower to
retain the balance of the sale proceeds, and, as additional consideration
for the Bank's agreement to forbear and its agreement to allow Borrower to
use a portion of such sale proceeds from the sale of the Bank's collateral
for the operation of Borrower's business, Borrower and Bank agree that in
the event a bankruptcy case under Chapter 11 of the Bankruptcy Code (11
U.S.C. 101 et seq. ) is commenced by or against Borrower at any time
after the execution of this Agreement, Borrower agrees that notwithstanding
the provisions of 11 U.S.C. 1121(b), Bank shall have the right to file a
plan of reorganization prior to the expiration of the 120 day period set
forth in that section and Borrower hereby expressly waives its exclusive
rights under that section solely as to Bank. Borrower agrees to consent to
an
4
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<PAGE>
Order modifying the exclusive periods of 11 U.S.C. 1121 to effectuate
the intent of this Paragraph.
(c) Borrower further covenants and agrees to pay in full prior to the
Termination Date (or, if earlier, prior to any exercise of the Fi. Fa.
(hereinafter defined) which would impair Bank's collateral), all 1998 ad
valorem taxes currently due and owing, together with all interest and
penalties then due, on Borrower's real property located Henry County, Georgia
(Map Reference No. 07302028001) which has been conveyed as security for the
Loan pursuant to the Henry Co. Deed to Secure Debt, and to cause the release
of that certain Henry County Tax Fi. Fa. filed in GED Book 150, page 99, Henry
County, Georgia Records (the "Fi. Fa.").
5. Acknowledgment of Default, Amounts Due and Maturity Date. Bank and
Borrower acknowledge that as of the Effective Date the outstanding unpaid
principal balance of the Note, prior to giving effect to the Principal Paydown
to be made by Borrower during the Forbearance Period in connection with this
Agreement, is $22,329,999.70 and the accrued, unpaid interest under the Note
as of the Effective Date is $182,485.87. Borrower and Guarantor also
acknowledge that costs and expenses, including without limitation attorneys'
fees and appraisal fees, are owed under the Note in addition to principal and
accrued interest. The maturity date for the Note is May 31, 2000. Borrower
and Guarantor waive any and all rights to other notice of payment default or
any other default, protest and notice of protest, dishonor, diligence in
collecting and the bringing of suit or arbitration proceedings against any
party, notice of intention to accelerate, notice of acceleration, demand for
payment and any other notices whatsoever regarding the Note or the other Loan
Documents, and further waive any claims that any notices previously given are
insufficient for any reason.
6. Limitation on Interest. No provision of this Agreement, the Note, any
of the other Loan Documents, or any instrument evidencing or securing the
Note, or otherwise relating to the indebtedness evidenced by the Note, shall
require the payment or permit the collection, application or receipt of
interest in excess of the maximum rate permitted by applicable state or
federal law. If any excess of interest in such respect is herein or in any
such other instrument provided for, or shall be adjudicated to be so provided
for herein or in any such instrument, the provisions of this paragraph shall
govern, and neither Borrower nor any endorsers of the Note nor their
respective heirs, personal representatives, successors or assigns shall be
obligated to pay the amount of such interest to the extent it is in excess of
the amount permitted by applicable law. It is expressly stipulated and agreed
to be the intent of Borrower and Bank at all times to comply with the usury
and other laws relating to the Note and the other Loan Documents and any
subsequent revisions, repeals or judicial interpretations thereof, to the
extent applicable to the Note or the other Loan Documents. In the event Bank
ever receives, collects or applies as interest any such excess, such amount
which would be excessive interest shall be applied to the reduction of the
unpaid principal balance of the Note, and, if upon such application the
principal balance of the Note is paid in full, any remaining excess shall be
paid forthwith to Borrower and the provisions of the Note, the other Loan
Documents and any demand or other charging document shall immediately be
deemed reformed and the amounts thereafter collectible thereunder reduced,
without the necessity of execution of any new document, so as to comply with
the then applicable law, but so as otherwise to permit the recovery of the
fullest amount called for thereunder. In determining whether or not the
interest paid or payable under any specific contingency exceeds the maximum
rate of interest allowed to be charged by applicable law, Borrower and Bank
shall, to the
5
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maximum extent permitted under applicable law, amortize,
prorate, allocate and spread the total amount of interest throughout the
entire term of the respective Note so that the amount or rate of interest
charged for any and all periods of time during the term of the Note is to the
greatest extent possible less than the maximum amount or rate of interest
allowed to be charged by law during the relevant period of time.
Notwithstanding any of the foregoing, if at any time applicable laws shall be
changed so as to permit a higher rate or amount of interest to be charged than
that permitted prior to such change, then unless prohibited by law, references
in the Note to "applicable law" for purposes of determining the maximum
interest or rate of interest that can be charged shall be deemed to refer to
such applicable law as so amended to allow the greater amount or rate of
interest.
7. Representations and Warranties. In order to induce Bank to execute,
deliver, and perform this Agreement, Borrower and Guarantor warrant and
represent to Bank that:
(a) this Agreement is not being made or entered into with the
actual intent to hinder, delay, or defraud any entity or person, and the
Borrower and Guarantor are each solvent and not bankrupt;
(b) this Agreement is not intended by the parties to be a novation
of the Loan Documents and, except as expressly modified herein, all terms,
conditions, rights and obligations as set out in the Loan Documents are hereby
reaffirmed and shall otherwise remain in full force and effect as originally
written and agreed;
(c) other than those previously disclosed to Bank by Borrower, no
action or proceeding, including, without limitation, a voluntary or
involuntary petition for bankruptcy under any chapter of the Federal
Bankruptcy Code, has been instituted or threatened by or against Borrower or
any Guarantor;
(d) the execution of this Agreement by Borrower and Guarantor and
the performance by Borrower and Guarantor of their obligations hereunder will
not violate or result in a breach or constitute a default under any agreements
to which any of them is a party;
(e) all information provided by Borrower and Guarantor to Bank
prior to the date hereof, including, without limitation, all financial
statements, balance sheets, and cash flow statements, was, at the date of
delivery, and is, as of the date hereof, true and correct in all material
respects. Borrower and Guarantor recognize and acknowledge that Bank is
entering into this Agreement based in part on the financial information
provided to Bank by each of them and that the truth and correctness of that
financial information is a material inducement to Bank in entering into this
Agreement. During the term of this Agreement, Borrower and Guarantor agree to
advise Bank promptly in writing of any and all new information, facts, or
occurrences which would in any way materially supplement, contradict, or
affect any financial statements, balance sheets, cash flow statements, or
similar items furnished to Bank; and
(f) This Agreement and the Loan Documents constitute the entire
agreement among Bank, Guarantor and Borrower with respect to this matter.
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<PAGE>
8. Termination of this Agreement. This Agreement will terminate upon the
expiration of the Forbearance Period unless terminated earlier by Bank, at
Bank's sole option, upon written notice to Borrower and Guarantor of the
occurrence of any of the following:
(a) Borrower or Guarantor files a petition for bankruptcy under any
chapter of the Federal Bankruptcy Code or takes advantage of any other debtor
relief law, or an involuntary petition for bankruptcy under any chapter of the
Federal Bankruptcy Code is filed against Borrower and/or any Guarantor, or any
other judicial action is taken with respect to Borrower or Guarantor by any
creditor;
(b) Bank discovers that any representation or warranty made herein
by Borrower or Guarantor was or is untrue, incorrect or misleading in any
material respect;
(c) An Event of Default occurs under the Loan Documents, other
than any Event of Default known to exist as of the date hereof, and the
Bank hereby acknowledges that it knows of the following:
(1) Events of Default presently existing under the following Sections
of the Loan Agreement: 7.9(a) (regarding Tangible Net Worth), 7.9
(c) (regarding Net Income), 5.8 (regarding payment of all debts as
they come due), and
(2) any Event of Default which may arise under Section 8.1(i) of the
Loan Agreement in connection with certain litigation or financial
circumstances which the Borrower has made the Bank aware of prior to
the date hereof;
(d) Borrower or Guarantor breaches or defaults in performance of
any covenant or agreement contained in this Agreement.
9. Waiver of Claims. Borrower and Guarantor warrant and represent to Bank
that the Note is not subject to any credits, charges, claims, or rights of
offset or deduction of any kind or character whatsoever; and Borrower and
Guarantor release and discharge Bank from any and all claims and causes of
action, whether known or unknown and whether now existing or hereafter
arising, including without limitation, any usury claims, that have at any time
been owned, or that are hereafter owned, in tort or in contract by Borrower or
Guarantor and that arise out of any one or more circumstances or events that
occurred prior to the date of this Agreement. Moreover, Borrower and
Guarantor, jointly and severally, waive any and all claims now or hereafter
arising from or related to any delay by Bank in exercising any rights or
remedies under the Loan Documents, including, without limitation, any delay in
foreclosing any collateral securing the Note.
10. ARBITRATION. THE LOAN DOCUMENTS ARE HEREBY AMENDED TO INCLUDE AND THIS
AGREEMENT SHALL BE SUBJECT TO THE FOLLOWING PROVISION:
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ARBITRATION. EXCEPT AS SET OUT BELOW, ANY CONTROVERSY OR CLAIM BETWEEN
OR AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY RELATED DOCUMENTS, INCLUDING ANY CLAIM
BASED ON OR ARISING FROM AN ALLEGED TORT (COLLECTIVELY, "CLAIM"), SHALL BE
DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE
AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE
OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH
BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL.
JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CLAIM IN ANY
COURT HAVING JURISDICTION OVER SUCH ACTION. THE INSTITUTION AND MAINTENANCE
OF AN ACTION FOR ANY JUDICIAL RELIEF SHALL NOT CONSTITUTE A WAIVER OF THE
RIGHT OF ANY PARTY, INCLUDING THE PLAINTIFF, TO SUBMIT THE CLAIM TO
ARBITRATION IF ANY OTHER PARTY CONTESTS SUCH ACTION FOR JUDICIAL RELIEF.
a. SPECIAL RULES. ANY ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF
ANY BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS AGREEMENT, OR IF
THERE IS REAL OR PERSONAL PROPERTY COLLATERAL, IN THE COUNTY WHERE SUCH REAL
OR PERSONAL PROPERTY IS LOCATED, AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT
AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING
THE ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL
60 DAYS. ANY DISPUTE CONCERNING THIS ARBITRATION PROVISION OR WHETHER A CLAIM
IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR. THE ARBITRATOR SHALL
HAVE THE POWER TO AWARD LEGAL FEES PURSUANT TO THE TERMS OF THIS AGREEMENT.
b. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL
BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES
OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II)
BE A WAIVER BY BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR
ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF ANY PARTY
HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (B) TO FORECLOSE AGAINST OR SELL ANY REAL OR PERSONAL PROPERTY COLLATERAL,
OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT
NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF
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POSSESSION OR THE APPOINTMENT OF A
RECEIVER. ANY PARTY MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE OR SELL
COLLATERAL OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
AGREEMENT. NONE OF THESE ACTIONS SHALL CONSTITUTE A WAIVER OF THE RIGHT OF
ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS
OF THE CLAIM OCCASIONING RESORT TO SUCH REMEDIES OR PROCEDURES.
c. WAIVER OF CERTAIN DAMAGES. THE PARTIES HERETO WAIVE ANY RIGHT OR
REMEDY EITHER MAY HAVE AGAINST THE OTHER TO RECOVER PUNITIVE OR EXEMPLARY
DAMAGES ARISING OUT OF ANY CLAIM WHETHER THE CLAIM IS RESOLVED BY ARBITRATION
OR BY JUDICIAL ACTION.
11. Miscellaneous.
(a) This Agreement may be executed in a number of identical
counterparts which, taken together, shall constitute collectively one (1)
agreement; but in making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart executed by the party to
be charged.
(b) Any future waiver, alteration, amendment or modification of
any of the provisions of the Loan Documents or this Agreement shall not be
valid or enforceable unless in writing and signed by all parties, it being
expressly agreed that neither the Loan Documents, or this Agreement can be
modified orally, by course of dealing or by implied agreement. Moreover, any
delay by Bank in enforcing its rights after an event of default shall not be a
release or waiver of the event of default and shall not be relied upon by the
Borrower or Guarantor as a release or waiver of the default.
(c) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their heirs, executors, administrators,
successors, legal representatives, and assigns.
(d) The headings of paragraphs in this Agreement are for
convenience of reference only and shall not in any way affect the
interpretation or construction of this Agreement.
(e) THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
GEORGIA AND FEDERAL LAW, AS APPLICABLE.
(f) The warranties and representations of the parties in this
Agreement shall survive the termination of this Agreement.
(g) The terms and conditions set forth in this Agreement are the
product of joint draftsmanship by all parties, each being represented by
counsel, and any ambiguities in this Agreement or any documentation prepared
pursuant to or in connection with this Agreement shall not be construed
against any of the parties because of draftsmanship.
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12. FINAL AGREEMENT. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG
THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR ORAL OR WRITTEN, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
EXECUTED under seal as of the Effective Date.
BORROWER: Attest: (SEAL)
Metrotrans Corporation
By:_________________________________ ____________________________________
Name:_______________________________ Name:_______________________________
Title:______________________________ Title:______________________________
Date:_______________________________
(CORPORATE SEAL)
GUARANTOR: Attest: (SEAL)
Bus Pro, Inc.
By:_________________________________ ____________________________________
Name:_______________________________ Name:_______________________________
Title:______________________________ Title:______________________________
Date:_______________________________
(CORPORATE SEAL)
BANK: Attest: (SEAL)
Bank of America, N.A.
By:_________________________________ ____________________________________
Name:_______________________________ Name:_______________________________
Title:______________________________ Title:______________________________
Date:_______________________________
(CORPORATE SEAL)
11
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