SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934.
For the fiscal year ended April 30, 1998
Commission File No. 0-24298
MILLER INDUSTRIES, INC.
-----------------------------------------------------
(Exact name of Registrant as specified in its charter)
Tennessee
--------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
62-1566286
------------------------------------
(I.R.S. Employer Identification No.)
8503 Hilltop Drive, Ooltewah, Tennessee 37363
----------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (423) 238-4171
Securities registered pursuant to Section 12(b) of the Act: COMMON STOCK,
PAR VALUE $0.01 PER SHARE.
Name of each exchange on which registered: NEW YORK STOCK EXCHANGE.
Securities registered pursuant to Section 12(g) of the Act: NONE.
Indicate by check mark whether the Registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the Registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes /X/ No / /.
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein
and will not be contained, to the best of Registrant's knowledge,
in definitive proxy or information statements incorporated by
reference in Part III of this Form 10-K or any amendment to this
Form 10K. [ ]
The aggregate market value of the voting stock held by
nonaffiliates of the Registrant as of July 22, 1998 was
$261,535,000 based on the closing sale price of the Common Stock
as reported by the New York Stock Exchange on such date. See
Item 12.
At July 22, 1998 there were 46,161,549 shares of Common
Stock, par value $0.01 per share, outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's definitive Proxy Statement for
the 1998 Annual Meeting of Shareholders are incorporated by
reference into Part III.
<PAGE>
TABLE OF CONTENTS
FORM 10-K ANNUAL REPORT
PART I
ITEM 1.
BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . 1
ITEM 2.
PROPERTIES . . . . . . . . . . . . . . . . . . . . . . . 18
ITEM 3.
LEGAL PROCEEDINGS . . . . . . . . . . . . . . . . . . . . 18
ITEM 4.
SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS . . . 19
PART II
ITEM 5.
MARKET FOR THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS . . . . . . . . . . . . . . . 19
ITEM 6.
SELECTED FINANCIAL DATA . . . . . . . . . . . . . . . . . 20
ITEM 7.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS . . . . . . . . . . . 23
ITEM 8.
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA . . . . . . . 26
ITEM 9.
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE . . . . . . . . . . . 26
PART III
ITEM 10.
DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT . . . 26
ITEM 11.
EXECUTIVE COMPENSATION . . . . . . . . . . . . . . . . . 26
-i-<PAGE>
ITEM 12.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT . . . . . . . . . . . . . . . . . . . . . 26
ITEM 13.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS . . . . . 27
PART IV
ITEM 14.
EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS
ON FORM 8-K . . . . . . . . . . . . . . . . . . . . . . . 27
FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . F-1
FINANCIAL STATEMENT SCHEDULES . . . . . . . . . . . . . . . . S-1
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . II-1
-ii-<PAGE>
PART I
ITEM 1. BUSINESS
GENERAL
Miller Industries, Inc. (the "Company") is the world's
leading integrated provider of vehicle towing and recovery
equipment and services and has executive offices in Ooltewah,
Tennessee and Atlanta, Georgia and manufacturing operations in
Tennessee, Pennsylvania, France and England. The Company's
business is divided into two segments: (i) manufacturing and
distributing towing and recovery equipment and providing
financial and related services to the towing and recovery
industry and (ii) providing towing and specialized transportation
services. The Company markets its towing and recovery equipment
under several well-recognized brand names and markets its towing
services under the national brand name of RoadOne(R).
Since 1990 the Company has developed or acquired several of
the most well-recognized brands in the fragmented towing and
recovery equipment manufacturing industry. The Company's
strategy has been to diversify its line of products and increase
its market share in the industry through a combination of
internal growth and development and acquisitions of complementary
businesses. In December 1997, the Company expanded its product
offerings as a result of the acquisition of Chevron, Inc., a
domestic manufacturer of towing equipment.
As a natural extension of its leading market position in
manufacturing and strong brand name recognition, the Company has
broadened its strategy to include vertical integration, with the
goal of achieving operating efficiencies while becoming a leading
worldwide manufacturer, distributor and financial services
provider in the towing and recovery industry. In fiscal 1998,
the Company acquired four towing equipment distributors, which,
together with previously acquired distributors and its
independent distributors, are part of a North American
distribution network for towing and recovery equipment as well as
other specialty truck equipment and components.
In February 1997, the Company formed its towing service
division, RoadOne, to begin building a national towing service
network. RoadOne offers a broad range of towing and
transportation services, including towing, impounding and storing
motor vehicles, conducting lien sales and auctions of abandoned
vehicles, environmental clean-up services, and transporting new
and used vehicles and heavy construction equipment. In fiscal
1998, the Company, through its RoadOne subsidiary, acquired 47
towing service companies with aggregate historical annual
revenues of approximately $67.6 million. These acquisitions are
part of the Company's plan to establish a national towing service
network through owned companies in combination with an extensive
group of affiliates. At July 22, 1998, the Company was operating
89 towing service companies from more than 180 locations, and had
relationships with over 1,035 RoadOne affiliates. The Company
intends to continue its expansion into additional towing service
markets.
INCLUSION OF FORWARD-LOOKING STATEMENTS
Certain statements in this Annual Report, including but not
limited to "Management's Discussion and Analysis of Financial
Condition and Results of Operations" may be deemed to be forward-
looking statements, as defined in the Private Securities<PAGE>
Litigation Reform Act of 1995. Such forward-looking statements
are made based on management's belief as well as assumptions made
by, and information currently available to, management pursuant
to "safe harbor" provisions of the Private Securities Litigation
Reform Act of 1995. The Company's actual results may differ
materially from the results anticipated in these forward-looking
statements due to, among other things, factors set forth below
under the heading "Risk Factors," and in particular, the risks
associated with acquisitions, including, without limitation, the
risks that acquisitions do not close and the cost or difficulties
related to the integration of the acquired businesses. The
Company cautions that such factors are not exclusive. The
Company does not undertake to update any forward-looking
statement that may be made from time to time by, or on behalf of,
the Company.
RISK FACTORS
UNCERTAINTIES IN INTEGRATING OPERATIONS AND ACHIEVING COST
SAVINGS. The companies that the Company has recently acquired
and that the Company plans to acquire have operations in many
different markets. The success of any business combination is in
part dependent on management's ability following the transaction
to integrate operations, systems and procedures and thereby
obtain business efficiencies, economies of scale and related cost
savings. The challenges posed to the Company's management may be
particularly significant because integrating the recently
acquired companies must be addressed contemporaneously. There
can be no assurance that future consolidated results will improve
as a result of cost savings and efficiencies from any such
acquisitions or proposed acquisitions, or as to the timing or
extent to which cost savings and efficiencies will be achieved.
RISKS ASSOCIATED WITH ACQUISITION STRATEGY. The Company has
an aggressive acquisition strategy that has involved, and is
expected to continue to involve, the acquisition of a significant
number of additional companies. As a result, the Company's
future success is dependent, in part, upon its ability to
identify, finance and acquire attractive businesses and then to
successfully integrate and/or manage such acquired businesses.
Acquisitions involve special risks, including risks associated
with unanticipated problems, liabilities and contingencies,
diversion of management attention and possible adverse effects on
earnings resulting from increased goodwill amortization,
increased interest costs, the issuance of additional securities
and difficulties related to the integration of the acquired
business. Although the Company believes that it can identify and
consummate the acquisitions of a sufficient number of businesses
to successfully implement its growth strategies, there can be no
assurance that such will be the case. Further, there can be no
assurance that future acquisitions will not have an adverse
effect upon the Company's operating results, particularly during
periods in which the operations of acquired businesses are being
integrated into the Company's operations.
RISKS OF FOREIGN MARKETS. The Company's growth strategy
includes the expansion of its operations in foreign markets. In
January 1996 the Company acquired of S.A. Jige International
("Jige"), a French manufacturer of wreckers and car carriers,
and in April 1996 the Company acquired Boniface Engineering
Limited ("Boniface"), a British manufacturer of towing and
recovery equipment. Prior to these acquisitions, the Company
had limited experience with sales and manufacturing operations
outside North America. There is no assurance that the Company
will be able to successfully integrate and expand its foreign
operations. Furthermore, there is no assurance that the
Company will be able to successfully expand sales outside of
North America or compete in markets in which it is unfamiliar
with cultural and business practices. The Company's foreign
operations are subject to various political, economic and other
-2-<PAGE>
uncertainties, including risks of restrictive taxation policies,
foreign exchange restrictions and currency translations, changing
political conditions and governmental regulations.
RISKS OF ENTERING NEW LINES OF BUSINESS. The Company's
growth strategy includes vertically integrating within the towing
and recovery industry through a combination of acquisitions and
internal growth. Implementation of its growth strategy has
resulted in the Company's entry into several new lines of
business. Historically, the Company's expertise has been in the
manufacture of towing equipment and the Company had no prior
operating experience in the lines of business it recently
entered. During fiscal 1997, the Company entered three new lines
of business through the acquisition of towing and recovery
equipment distributors and towing service companies, and the
establishment of the Company's Financial Services Group. The
Company's operation of these businesses will be subject to all of
the risks inherent in the establishment of a new business
enterprise. Such acquisitions present the additional risk that newly-
acquired businesses could be viewed as being in competition with
other customers of the Company. Although the new businesses are
closely related to the Company's towing equipment manufacturing
business, there can be no assurance that the Company will be able
to successfully operate these new businesses.
CYCLICAL NATURE OF INDUSTRY AND GENERAL ECONOMIC CONDITIONS.
The towing and recovery industry is cyclical in nature and has
been affected historically by high interest rates and economic
conditions in general. Accordingly, a downturn in the economy
could have a material adverse effect on the Company's operations.
The industry is also influenced by consumer confidence and
general credit availability.
FLUCTUATIONS IN PRICE AND SUPPLY OF MATERIALS AND COMPONENT
PARTS. The Company is dependent upon outside suppliers for its
raw material needs and other purchased component parts and,
therefore, is subject to price increases and delays in receiving
supplies of such materials and component parts. There can be no
assurance that the Company will be able to pass any price
increase on to its customers. Although the Company believes that
sources of its materials and component parts will continue to be
adequate to meet its requirements and that alternative sources
are available, events beyond the Company's control could have an
adverse effect on the cost or availability of such materials and
component parts. Additionally, demand for the Company's products
could be negatively affected by the unavailability of truck
chassis, which are manufactured by third parties and are
typically purchased separately by the Company's distributors or
by towing operators and are sometimes supplied by the Company.
COMPETITION. The towing and recovery equipment
manufacturing industry is highly competitive. Competition for
sales exists at both the distributor and towing-operator levels
and is based primarily on product quality and innovation,
reputation, technology, customer service, product availability
and price. In addition, sales of the Company's products are
affected by the market for used towing and recovery equipment.
Certain of the Company's competitors may have substantially
greater financial and other resources and may provide more
attractive dealer and retail customer financing alternatives than
the Company. Historically, the towing service industry has been
highly fragmented, with an estimated 30,000 professional towing
operators in the United States, therefore the Company's towing
service operations will face continued competition from many
operators across the country. The Company also faces competition
in its consolidation of professional towing operators. These
operators could be consolidated by other companies, individuals
or entities, or they could enter into affiliate relationships
with other companies. In addition, the Company's presence in the
towing service industry presents the risk that it could be viewed
-3-<PAGE>
as being in competition with other customers of the Company. The
Company may also face significant competition from large
competitors as it enters other new lines of business, including
towing and recovery equipment distribution and financial
services.
DEPENDENCE ON PROPRIETARY TECHNOLOGY. Historically, the
Company has been able to develop or acquire patented and other
proprietary product innovations which have allowed it to produce
what management believes to be technologically advanced products
relative to most of its competition. Certain of the Company's
patents expire in 2004 at which time the Company may not have a
continuing competitive advantage through proprietary products and
technology. The Company's historical market position has been a
result, in part, of its continuous efforts to develop new
products. The Company's future success and ability to maintain
market share will depend, to an extent, on new product
development.
LABOR AVAILABILITY. The timely production of the Company's
wreckers and car carriers requires an adequate supply of skilled
labor. In addition, the operating costs of each manufacturing
and towing service facility can be adversely affected by high
turnover in skilled positions. Accordingly, the Company's
ability to increase sales, productivity and net earnings will be
limited to a degree by its ability to employ the skilled laborers
necessary to meet the Company's requirements. There can be no
assurance that the Company will be able to maintain an adequate
skilled labor force necessary to efficiently operate its
facilities.
DEPENDENCE ON KEY MANAGEMENT. The success of the Company is
highly dependent on the continued services of the Company's
management team. The loss of services of one or more key members
of the Company's senior management team could have a material
adverse effect on the Company. Although the Company historically
has been successful in retaining the services of its senior
management, there can be no assurance that the Company will be
able to retain such personnel in the future.
PRODUCT LIABILITY AND INSURANCE. The Company is subject to
various claims, including product liability claims arising in the
ordinary course of business, and may at times be a party to
various legal proceedings that constitute ordinary routine
litigation incidental to the Company's business. The Company
maintains reserves and liability insurance coverage at levels
based upon commercial norms and the Company's historical claims
experience. A successful product liability or other claim
brought against the Company in excess of its insurance coverage
or the inability of the Company to acquire insurance at
commercially reasonable rates could have a material adverse
effect upon the Company's business, operating results and
financial condition.
VOLATILITY OF MARKET PRICE. From time to time, there may be
significant volatility in the market price for the Common Stock.
Quarterly operating results of the Company, changes in earnings
estimated by analysts, changes in general conditions in the
Company's industry or the economy or the financial markets or
other developments affecting the Company could cause the market
price of the Common Stock to fluctuate substantially. In
addition, in recent years the stock market has experienced
significant price and volume fluctuations. This volatility has
had a significant effect on the market prices of securities
issued by many companies for reasons unrelated to their operating
performance.
POSSIBLE ADVERSE EFFECT OF FUTURE SALES OF COMMON STOCK.
The Company has filed a shelf registration statement to register
for sale, from time to time on a continuous basis, an aggregate
of 5 million shares of Common Stock which the Company has issued
and intends to issue in connection with certain of its
-4-
<PAGE>
acquisitions or in other transactions. Such securities may be
subject to resale restrictions in accordance with the Securities
Act and the regulations promulgated thereunder, as well as resale
limitations imposed by tax laws and regulations or by contractual
provisions negotiated by the Company. As such restrictions
lapse, such securities may be sold to the public. In the event
of the issuance and subsequent resale of a substantial number of
shares of Common Stock, or a perception that such sales could
occur, there could be a material adverse effect on the prevailing
market price of Common Stock.
CONTROL BY PRINCIPAL SHAREHOLDER. William G. Miller, the
Chairman and Co-Chief Executive Officer of the Company,
beneficially owns approximately 15% of the outstanding shares of
Common Stock. Accordingly, Mr. Miller has the ability to exert
significant influence over the business affairs of the Company,
including the ability to influence the election of directors and
the result of voting on all matters requiring shareholder
approval.
ANTI-TAKEOVER PROVISIONS OF CHARTER AND BYLAWS; PREFERRED
STOCK. The Company's Charter and Bylaws contain restrictions
that may discourage other persons from attempting to acquire
control of the Company, including, without limitation,
prohibitions on shareholder action by written consent and advance
notice requirements respecting amendments to certain provisions
of the Company's Charter and Bylaws. In addition, the Company's
Charter authorizes the issuance of up to 5,000,000 shares of
preferred stock. The rights and preferences for any series of
preferred stock may be set by the Board of Directors, in its sole
discretion and without shareholder approval, and the rights and
preferences of any such preferred stock may be superior to those
of Common Stock and thus may adversely affect the rights of
holders of Common Stock.
TOWING AND RECOVERY EQUIPMENT
The Company offers a broad range of towing and recovery
equipment products that meet most customer design, capacity and
cost requirements. The Company manufactures the bodies of
wreckers and car carriers, which are installed on truck chassis
manufactured by third parties. Wreckers generally are used to
recover and tow disabled vehicles and other equipment and range
in type from the conventional tow truck to large recovery
vehicles with rotating hydraulic booms and 60-ton lifting
capacities. Car carriers are specialized flat bed vehicles with
hydraulic tilt mechanisms that enable a towing operator to drive
or winch a vehicle onto the bed for transport. Car carriers
transport new or disabled vehicles and other equipment and are
particularly effective over longer distances.
The Company's products are sold primarily through
independent distributors that serve all 50 states, Canada and
Mexico, and other foreign markets including Europe, the Pacific
Rim and the Middle East. As a result of its ownership Jige in
France and Boniface in the United Kingdom, the Company has
substantial distribution capabilities in Europe. While most of
the Company's distributor agreements do not contain exclusivity
provisions, management believes that approximately 75% of the
Company's independent distributors sell the Company's products on
an exclusive basis. In addition to selling the Company's
products to towing operators, the distributors provide parts and
service. The Company also has independent sales representatives
that exclusively market the Company's products and provide
expertise and sales assistance to distributors. Management
believes the strength of the Company's distribution network and
the breadth of its product offerings are two key advantages over
its competitors.
-5-<PAGE>
PRODUCT LINE
The Company manufactures a broad line of wrecker and car
carrier bodies to meet a full range of customer design, capacity
and cost requirements. The products are marketed under the
Century, Vulcan, Challenger, Holmes, Champion, Chevron, Eagle,
Jige, and Boniface brand names.
WRECKERS. Wreckers are generally used to recover and tow
disabled vehicles and other equipment and range in type from the
conventional tow truck to large recovery vehicles with 60-ton
lifting capacities. Wreckers are available with specialized
features, including underlifts, L-arms and scoops, which lift
disabled vehicles by the tires or front axle to minimize front
end damage to the towed vehicles. Certain heavy duty wrecker
models offer rotating booms, which allow heavy duty wreckers to
recover vehicles from any angle, and proprietary remote control
devices for operating wreckers. In addition, certain light duty
wreckers are equipped with the patented "Eagle Claw" automatic
wheellift hookup device that allows operators to engage a
disabled or unattended vehicle without leaving the cab of the
wrecker.
The Company's wreckers range in capacity from 8 to 60 tons,
and are characterized as light duty and heavy duty, with wreckers
of 16-ton or greater capacity being classified as heavy duty.
Light duty wreckers are used to remove vehicles from accident
scenes and vehicles illegally parked, abandoned or disabled, and
for general recovery. Heavy duty wreckers are used in commercial
towing and recovery applications including overturned tractor
trailers, buses, motor homes and other vehicles.
CAR CARRIERS. Car carriers are specialized flat bed
vehicles with hydraulic tilt mechanisms that enable a towing
operator to drive or winch a vehicle onto the bed for transport.
Car carriers are used to transport new or disabled vehicles and
other equipment and are particularly effective for transporting
vehicles or other equipment over longer distances. In addition
to transporting vehicles, car carriers may also be used for other
purposes, including transportation of industrial equipment. In
recent years, professional towing operators have added car
carriers to their fleets to complement their towing capabilities.
BRAND NAMES
The Company manufactures and markets its wreckers and car
carriers under nine separate brand names. Although certain of
the brands overlap in terms of features, prices and distributors,
each brand has its own distinctive image and customer base.
Century(R). The Century brand is the Company's "top-of-the-
line" brand and represents what management believes to be the
broadest product line in the industry. The Century line was
started in 1974 and produces wreckers ranging from the 8-ton
light duty to the 60-ton heavy duty models and car carriers in
lengths from 17 1/2 to 26 feet. Management believes that the
Century brand has a reputation as the industry's leading product
innovator.
Vulcan(R). The Company's Vulcan product line includes a range
of premium light and heavy duty wreckers, car carriers and other
towing and recovery equipment. The Vulcan line is operated
autonomously with its own independent distribution network.
Challenger(R). The Company's Challenger products compete with
the Century and Vulcan products and constitute a third premium
product line. Challenger products consist of light to heavy duty
-6-<PAGE>
wreckers with capacities ranging from 8 to 60 tons, and car
carriers with lengths ranging from 17 1/2 to 26 feet. The
Challenger line was started in 1975 and is known for high
performance heavy duty wreckers and aesthetic design.
Holmes(R). The Company's Holmes product line includes mid-
priced wreckers with 8 to 16 ton capacities and car carriers in
17 1/2 to 21 foot lengths. The Holmes wrecker was first produced in
1916. The Holmes name has been the most well-recognized and
leading industry brand both domestically and internationally
through most of this century.
Champion(R). The Champion brand, which was introduced in
1991, includes car carriers which range in length from 17 1/2 to 21
feet. The Champion product line, which is generally lower-
priced, allows the Company to offer a full line of car carriers
at various competitive price points. In 1993, the Champion line
was expanded to include a line of economy tow trucks with
integrated boom and underlift.
Chevron(R). The Company's Chevron product line is comprised
primarily of premium car carriers. Chevron produces a range of
premium single-car, multi-car and industrial carriers, light duty
wreckers and other towing and recovery equipment. The Chevron
line is operated autonomously with its own independent
distribution network that focuses on the salvage industry.
Eagle(R). The Company's Eagle products consist of light duty
wreckers with a patented "Eagle Claw" hook-up system that
allows towing operators to engage a disabled or unattended
vehicle without leaving the cab of the tow truck. The "Eagle
Claw" hook-up system, which was patented in 1984, was originally
developed for the repossession market. Since acquiring Eagle,
the Company has upgraded the quality and features of the Eagle
product line and expanded its recovery capability. The Eagle
line is now gaining increased popularity in the broader towing
and recovery vehicle market.
Jige(TM). The Company's Jige product line is comprised of a
broad line of light and heavy duty wreckers and car carriers
marketed primarily in Europe. Jige is a market leader best known
for its innovative designs of car carriers and light wreckers
necessary to operate within the narrow confines of European
cities.
Boniface(TM). The Company's Boniface product line is comprised
primarily of heavy duty wreckers. Boniface produces a wide range
of heavy duty wreckers specializing in the long underlift
technology required to tow modern European tour buses.
The Company's Holmes and Century brand names are associated
with four of the major innovations in the industry: the rapid
reverse winch, the tow sling, the hydraulic lifting mechanism,
and the underlift with parallel linkage and L-arms. The
Company's engineering staff, in consultation with manufacturing
personnel, uses computer-aided design and stress analysis systems
to test new product designs and to integrate various product
improvements. In addition to offering product innovations, the
Company focuses on developing or licensing new technology for its
products.
MANUFACTURING PROCESS
The Company manufactures wreckers and car carriers at six
manufacturing facilities located in the United States, France and
England. The manufacturing process for the Company's products
consists primarily of cutting and bending sheet steel or aluminum
-7-<PAGE>
into parts that are welded together to form the wrecker or car
carrier body. Components such as hydraulic cylinders, winches,
valves and pumps, which are purchased by the Company from third-
party suppliers, are then attached to the frame to form the
completed wrecker or car carrier body. The completed body is
either installed by the Company or shipped by common carrier to a
distributor where it is then installed on a truck chassis.
Generally, the wrecker or car carrier bodies are painted by the
Company with a primer coat only, so that towing operators can
select customized colors to coordinate with chassis colors or
fleet colors. To the extent final painting is required before
delivery, the Company contracts with independent paint shops for
such services.
The Company purchases raw materials and component parts from
a number of sources. Although the Company has no long-term
supply contracts, management believes the Company has good
relationships with its primary suppliers. The Company has
experienced no significant problems in obtaining adequate
supplies of raw materials and component parts to meet the
requirements of its production schedules. Management believes
that the materials used in the production of the Company's
products are available at competitive prices from an adequate
number of alternative suppliers. Accordingly, management does
not believe that the loss of a single supplier would have a
material adverse effect on the Company's business.
TOWING AND RECOVERY EQUIPMENT SALES AND DISTRIBUTION
Management categorizes towing and recovery products into
three general product types: light duty wreckers, heavy duty
wreckers and car carriers. The light duty wrecker customer base
consists primarily of professional wrecker operators,
repossession towing services, municipal and federal governmental
agencies, and repair shop or salvage company owners. The heavy
duty customer base is dominated by professional wrecker operators
serving the needs of commercial vehicle operators. The car
carrier customer base, historically dominated by automobile salvage
companies, has expanded to include equipment rental companies
that offer delivery service and professional towing operators who
desire to complement their existing towing capabilities.
Management estimates that there are approximately 30,000
professional towing operators and 80,000 service station, repair
shop and salvage operators comprising the overall towing and
recovery market.
The Company's sales force, which services the Company's
distribution network, consists of 40 sales representatives, 34 of
whom are Company employees whose responsibilities include
providing administrative and sales support to the entire
distributor base. The remaining 6 sales representatives are
independent contractors who market the Company's products
exclusively. Sales representatives receive commissions on direct
sales based on product type and brand and generally are assigned
specific territories in which to promote sales of the Company's
products and to maintain customer relationships.
The Company has developed a diverse customer base consisting
of approximately 150 distributors in North America, who serve all
50 states, Canada and Mexico, and approximately 50 distributors
that serve other foreign markets. During the fiscal year ended
April 30, 1998, no single distributor accounted for more than 5%
of the Company's sales. Management believes the Company's broad
and diverse customer base provides it with the flexibility to
adapt to market changes, lessens its dependence on particular
distributors and reduces the impact of regional economic factors.
-8-
<PAGE>
To support sales and marketing efforts, the Company produces
demonstrator models that are used by the Company's sales
representatives and distributors. To increase exposure to its
products, the Company also has served as the official recovery
team for many automobile racing events, including the Daytona,
Talladega, Atlanta and Darlington NASCAR races, the Grand Prix in
Miami, the Suzuka in Japan, the IMSA "24 Hours at Daytona" and
Molson Indy races, among others.
The Company routinely responds to requests for proposals or
bid invitations in consultation with its local distributors. The
Company has been selected by the United States General Services
Administration as an approved source for certain federal and
defense agencies. The Company intends to continue to pursue
government contracting opportunities.
The towing and recovery equipment industry places heavy
marketing emphasis on product exhibitions at national and
regional trade shows. In order to focus its marketing efforts and
to control marketing costs, the Company has reduced its
participation in regional trade shows and now concentrates its
efforts on five of the major trade shows each year. The Company
works with its distributor network to concentrate on various
regional shows.
TOWING EQUIPMENT DISTRIBUTOR ACQUISITIONS
Since July 1996, the Company's distribution group has
acquired 10 towing equipment distributors. These distributors
are located in California, Colorado, Florida, Georgia, Illinois,
Missouri and Mississippi and in British Columbia and Ontario,
Canada. The acquired distributors market the Company's products
as well as other specialty transportation equipment, and the
Company intends to expand the number and types of products
distributed through its distributors. The Company-owned
distributors generally do not compete in the same geographic
markets as the Company's independent distributors.
During fiscal 1998, the Company acquired four towing
equipment distributors in separate transactions, none of which
were material to the financial results of the Company. The
Company issued an aggregate of approximately 44,000 shares of
Common Stock and paid approximately $868,000 in cash in
transactions accounted for under the purchase method of
accounting, and issued approximately 151,000 shares of Common
Stock in acquisitions accounted for under the pooling-of-
interests method. The Company intends to acquire additional
towing equipment distributors from time to time and anticipates
financing such acquisitions with issuances of Common Stock, cash
and/or borrowings under lines of credit, but is not currently a
party to any agreement to acquire any other distributors. The
Company uses an internal acquisition team, supplemented as needed
by outside advisors, and its extensive contacts in the towing
service industry, to identify, evaluate, acquire and integrate
towing equipment distributors. Acquisition candidates are
evaluated based on stringent criteria in a comprehensive process
which includes operational, legal and financial due diligence
reviews.
-9-
<PAGE>
FINANCIAL SERVICES
The Company's Financial Services Group commenced operations
in September 1996 to provide financial services to towing and
recovery equipment distributors and towing service companies.
The Company initially offered floor plan financing to
distributors and purchase and lease financing to towing service
operators. In addition to financing services, the Financial
Services Group now provides insurance coverage, extended
warranties and related services to purchasers of the Company's
products.
The Company has entered into business relationships with
Associates Commercial Corporation, and others (the "Lenders") to
jointly market financing of the Company's products. As part of
these relationships, the Company, through its owned and
independent distributors, originates lease and loan financing for
its end-consumers, and the Lenders provide the financing and
servicing of the leases and loans. In return for the Company's
marketing activities, the Lenders pay a fee based on amounts
financed.
The Company expects to capitalize on its strong existing
relationships with its distributors and their customers and its
reputation for reliable service to develop the Financial Services
Group.
-10-
<PAGE>
PRODUCT WARRANTIES AND INSURANCE
The Company offers a 12-month limited manufacturer's product
and service warranty on its wrecker and car carrier products.
The Company's warranty generally provides for repair or
replacement of failed parts or components. Warranty service is
usually performed by the Company or an authorized distributor.
Due to its emphasis on quality production, the Company's warranty
expense in fiscal 1998 averaged less than 1% of net sales.
Management believes that the Company maintains adequate general
liability and product liability insurance.
BACKLOG
The Company produces virtually all of its products to order.
The Company's backlog is based upon customer purchase orders that
the Company believes are firm. The level of backlog at any
particular time, however, is not an appropriate indicator of the
future operating performance of the Company. Certain purchase
orders are subject to cancellation by the customer upon
notification. Given the Company's production and delivery
schedules, as well as the recent plant expansions, management
believes that the current backlog represents less than three
months of production.
COMPETITION
The towing and recovery equipment manufacturing industry is
highly competitive for sales to distributors and towing
operators. Management believes that competition in the towing
and recovery equipment industry is a function of product quality
and innovation, reputation, technology, customer service, product
availability and price. The Company competes on the basis of
each of these criteria, with an emphasis on product quality and
innovation and customer service. Management also believes that a
manufacturer's relationship with distributors is a component
of success in the industry. Accordingly, the Company has
invested substantial resources and management time in building
and maintaining strong relationships with distributors.
Management also believes that the Company's products are regarded
as high quality within their particular price points. The
Company's marketing strategy is to continue to compete primarily
on the basis of quality and reputation rather than solely on the
basis of price, and to continue to target the growing group of
professional towing operators who as end-users recognize the
quality of the Company's products.
Traditionally, the capital requirements for entry into the
towing and recovery manufacturing industry have been relatively
low. Management believes a manufacturer's capital resources and
access to technological improvements have become a more integral
component of success in recent years. Accordingly, management
believes that the Company's ownership of patents on certain of
the industry's leading technologies has given it a competitive
advantage. Certain of the Company's competitors may have greater
financial and other resources and may provide more attractive
dealer and retail customer financing alternatives than the
Company.
EMPLOYEES
At April 30, 1998, the Company employed approximately 1,026
people in its towing and recovery equipment manufacturing and
distribution operations. None of the Company's employees is
covered by a collective bargaining agreement, though its
employees in France and England have certain similar rights
provided by their respective government's employment regulations.
The Company considers its employee relations to be good.
-11-<PAGE>
TOWING SERVICES - ROADONE
In February 1997, the Company formed its towing services
division, RoadOne, to begin building a national towing service
network. With the acquisition of 89 towing service companies as
of July 23, 1998, RoadOne has become a leading towing service
company with operations located in Arizona, California, Colorado,
Florida, Georgia, Illinois, Indiana, Kentucky, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New
Jersey, New York, Nevada, North Carolina, Ohio, Oklahoma, Oregon,
South Carolina, Tennessee, Texas and Washington. RoadOne's
corporate offices are located in Chattanooga, Tennessee.
Historically, the towing service industry has been highly
fragmented, with an estimated 30,000 professional towing
operators in the United States, many that are undercapitalized
local operators with no viable means of independently realizing
the economic value they have created for their businesses. As
the Company continues to pursue the acquisition of towing service
companies, management believes that these owned companies, along
with affiliations established with non-owned professional towing
operations, will form an organization capable of offering
commercial industries, as well as the general public, consistent,
high quality service across the nation. The Company's strategy
is to build brand loyalty among towing service customers by
emphasizing consistently high quality and dependable service from
multiple locations throughout a broad geographic area. The
Company intends to market these services to organizations with
widely dispersed fleets of vehicles that would benefit from a
single source provider.
SERVICES PROVIDED
Services provided by RoadOne include towing and recovery and
specialized transportation services. RoadOne's towing and
recovery services primarily involve providing road-side
assistance to disabled vehicles which allows such vehicles to
proceed under their own power, or towing disabled or abandoned
vehicles to a location designated by the customer. RoadOne
derives revenue from towing and recovery services based on
distance, time or fixed charges and from storage services based
on daily fees. These services are primarily provided to
commercial entities, such as fleet operators, automobile dealers,
repair shops, automobile leasing companies, and automobile
auction companies; public entities such as municipalities,
police, sheriff and highway patrol departments, colleges and
universities, and toll-road departments; motor clubs; and
individual motorists. RoadOne conducts lien and salvage sales of
certain vehicles in conjunction with its towing and recovery
services. RoadOne also provides limited environmental clean-up
services in some areas.
RoadOne's specialized transportation services primarily
involve transporting new and used vehicles, construction
equipment and industrial equipment. RoadOne derives revenue from
transport services based on distance, time or fixed charges.
These services are primarily provided to automobile leasing
companies, automobile auction companies, automobile dealers,
fleet operators, construction companies, and industrial
manufacturers.
-12-
<PAGE>
TOWING, RECOVERY AND ROAD SERVICES
COMMERCIAL. RoadOne provides commercial road services to a
broad range of commercial customers, including automobile dealers
and repair shops. RoadOne typically charges a flat fee and a
mileage premium for these towing services. Commercial road
services also include towing and recovery of heavy-duty trucks,
recreational vehicles, buses and other large vehicles, typically
for commercial fleet operators. RoadOne charges an hourly rate
based on the towing vehicle used for these specialized services.
RoadOne also provides private impound towing services to
commercial customers, such as shopping centers, retailers and
hotels, which engage RoadOne to tow vehicles that are parked
illegally on their property.
MUNICIPAL. RoadOne also provides towing and recovery
services to public entities such as municipalities and police,
sheriff and highway patrol departments. In a limited number of
markets, RoadOne provides municipal freeway service towing to
local transit districts and other transportation agencies through
patrolling a preset route on heavily-used freeways and towing or
otherwise assisting disabled vehicles. These services are in
some cases provided under contracts, typically for terms of five
years or less, that are terminable for material breach and are
typically subject to competitive bidding upon expiration. In
other cases, RoadOne provides these services without a long-term
contract. Whether pursuant to a contract or an ongoing
relationship, these services are generally provided by RoadOne
for a designated geographic area, or shared with one or more
other companies on a rotation basis.
MOTOR CLUB. RoadOne provides towing and recovery services
under contract to national motor clubs for the disabled vehicles
of their members. Roadside assistance is provided and, if
necessary, vehicles are towed to repair facilities for a flat fee
paid by either the individual motorist or the motor club.
CONSUMER TOWING AND RECOVERY. RoadOne provides towing and
recovery services to individual motorists for their disabled
vehicles. Roadside assistance is provided and, if necessary,
vehicles are towed to repair facilities for a flat fee paid by
the individual motorist.
LIEN AND SALVAGE SALES. In conjunction with providing
towing and recovery services, vehicles may be towed to a Company
facility where the vehicle is impounded and placed in storage.
Such a vehicle will remain in storage until its owner pays the
towing fee, which is typically based on an hourly charge, and any
daily storage fees, to the Company, as well as any fines due to
law enforcement agencies. If the vehicle is not claimed within a
period prescribed by law (typically between 30 and 90 days),
RoadOne may complete lien proceedings and sell the vehicle at
auction or to a scrap metal facility, depending on the value of
the vehicle.
ENVIRONMENTAL CLEANUP. RoadOne also provides environmental
cleanup services to a range of commercial customers in some
markets. These services are typically provided when there is a
spill of a petroleum product in conjunction with a wrecked
vehicle requiring towing and recovery services, but may also
involve an isolated spill. RoadOne does not cleanup spills of
materials designated as Hazardous Materials by the Environmental
Protection Agency. There are fixed and variable components to
the fees charged by RoadOne for its environmental cleanup
services.
-13-<PAGE>
SPECIALIZED TRANSPORTATION
CONSTRUCTION EQUIPMENT. RoadOne provides construction
equipment transport services to construction companies,
contractors, municipalities and equipment leasing companies for
mobile cargo such as cranes, bulldozers, forklifts and other
heavy construction equipment. Service fees are based on the
vehicle used and the distance traveled.
INDUSTRIAL EQUIPMENT. RoadOne provides industrial equipment
transport services to manufacturing companies, construction
companies, contractors, municipalities and equipment leasing
companies for immobile cargo such as engines, industrial
generators and heavy construction materials. Service fees may be
based on the vehicle used and the distance traveled or may be
determined using an hourly rate based on the towing vehicle used
for these specialized services.
NEW AND USED AUTOMOBILE. RoadOne provides automobile
transport services to leasing companies, automobile dealers,
automobile auction companies, long-distance transporters, brokers
and individuals. Services typically are provided as needed by
particular customers and charged according to pre-set rates based
on mileage. RoadOne provides transport services for dealers with
used cars coming off lease and who transfer new cars from one
region to another based on demand. The Company also provides
local collection and delivery support to long-haul automobile
transporters.
DISPATCH SYSTEMS
RoadOne currently dispatches its towing and recovery and
specialized transportation services via existing local dispatch
systems operated by its individual subsidiaries. Some of these
subsidiaries utilize computerized positioning systems which
identify and track vehicle location and status in a localized
area. RoadOne intends to continue to use these existing dispatch
systems, while developing and implementing a national
computerized dispatch system that will more efficiently support
its national, regional and local customers in allocating and
utilizing assets on every level.
TOWING SERVICE ACQUISITIONS
The Company intends to continue to acquire additional towing
service operations. The Company has targeted professional
towers, and generally seeks operators who have good reputations
in their markets and solid management willing to continue in the
employment of the Company after the acquisition. The Company
uses an internal acquisition team, supplemented as needed by
outside advisors, and its extensive contacts in the towing
service industry, to identify, evaluate, acquire and integrate
towing operators. Acquisition candidates are evaluated based on
criteria in a comprehensive process which includes operational,
legal and financial due diligence reviews. The Company expects
to utilize Common Stock, cash, or both as consideration for
future acquisitions.
During fiscal 1998, the Company acquired 47 towing service
companies in separate transactions, none of which were
individually material to the financial results of the Company.
The Company issued an aggregate of approximately 2.8 million
shares of Common Stock and paid approximately $14.5 million in
cash in such transactions which have been accounted for under the
purchase method of accounting, and issued an aggregate of
approximately 716,000 shares of Common Stock in such transactions
which have been accounted for under the pooling-of-interests
method of accounting. Subsequent to April 30, 1998, the Company
has acquired 13 additional towing service companies in separate
-14-<PAGE>
transactions as of July 2, 1998, issuing approximately 256,000
shares of Common Stock and paying approximately $7.1 million in
cash, all of which transactions have been accounted for under the
purchase method of accounting.
At July 22, 1998, the Company had entered into letters of
intent to acquire 21 additional towing service companies in
transactions expected to close over the following twelve weeks.
These transactions are subject to customary conditions, including
completion of due diligence investigations and execution of
definitive acquisition agreements, among others. The Company
intends to continue to aggressively pursue additional purchases
of towing service companies.
AFFILIATE PROGRAM
In order to offer a nationwide towing service, the Company
has established an affiliate program under which independent
professional towers who meet the Company's criteria provide
towing services under the RoadOne name as "affiliates." RoadOne
affiliated companies will be offered many of the benefits of
owned companies, such as product rebates, lower costs for
financing and insurance, quantity buying advantages, national
marketing strength and driver training. The Company's intention
is eventually to sign agreements with a large number of RoadOne
affiliates across North America. As of July 22, 1998, the
Company had signed 1,048 agreements with RoadOne affiliates in
all 50 states, Puerto Rico and four provinces in Canada.
COMPETITION
Historically, the towing service industry has been highly
fragmented, with an estimated 30,000 professional towing
operators in the United States. The Company believes that its
consolidation of a number of these companies will give it brand
loyalty among towing service customers through an emphasis on
consistently high quality and dependable service from multiple
locations over a broad geographic area. The Company expects to
market these services to organizations with widely dispersed
fleets of vehicles that would benefit from a single source
provider. However, the size of the towing service industry will
mean that the Company's operations will face continued
competition from many operators across the country. The Company
also faces competition in its consolidation of professional
towing operators. These operators could be consolidated by other
companies, individuals or entities, or they could enter into
affiliate relationships with other companies. In addition, the
Company's presence in the towing service industry presents the
risk that it could be viewed as being in competition with other
customers of the Company.
EMPLOYEES
At April 30, 1998, the Company employed approximately 3,105
people at RoadOne. None of the Company's RoadOne employees are
covered by a collective bargaining agreement. The Company
considers its employee relations to be good.
PATENTS AND TRADEMARKS
The development of the underlift parallel linkage and L-arms
in 1982 is considered one of the most innovative developments in
the wrecker industry in the last 25 years. This technology is
-15-<PAGE>
significant primarily because it allows the damage-free towing of
newer aerodynamic vehicles made of lighter weight materials.
Patents for this technology were granted to an operating
subsidiary of the Company in 1987 and 1989. These patents expire
in mid-year 2004. This technology, particularly the L-arms, is
used in a majority of the commercial wreckers today. Management
believes that utilization of such L-arm devices without a license is an
infringement of the Company's patent. The Company has
successfully litigated infringement lawsuits in which the
validity of the Company's patent on this technology was upheld. The
Company also holds a number of other utility and design patents
covering other products, including the "Eagle-Claw" hook up system,
the Vulcan "scoop" wheel-retainer and the car carrier anti-tilt
device. The Company has also obtained the rights to use and develop
certain technologies owned or patented by others.
The Company's trademarks "Century," "Holmes," "Champion,"
"Challenger," "Formula I," "Eagle Claw Self-Loading Wheellift,"
"Pro Star," "Street Runner," "Vulcan," and "RoadOne," among others,
are registered with the United States Patent and Trademark Office.
Management believes that the Company's trademarks are well-recognized
by dealers, distributors and end-users in their respective markets
and are associated with a high level of quality and value.
GOVERNMENT REGULATIONS AND ENVIRONMENTAL MATTERS
The Company's operations are subject to federal, state and
local laws and regulations relating to the generation, storage,
handling, emission, transportation and discharge of materials
into the environment. Management believes that the Company is in
substantial compliance with all applicable federal, state and
local provisions relating to the protection of the environment.
The costs of complying with environmental protection laws and
regulations has not had a material adverse impact on the
Company's financial condition or results of operations in the
past and is not expected to have a material adverse impact in the
future.
The Company is also subject to the Magnuson-Moss Warranty
Federal Trade Commission Improvement Act which regulates the
description of warranties on products. The description and
substance of the Company's warranties are also subject to a
variety of federal and state laws and regulations applicable to
the manufacturing of vehicle components. Management believes
that continued compliance with various government regulations
will not materially affect the operations of the Company.
The Financial Services Group is subject to regulation under
various federal, state and local laws which limit the interest
rates, fees and other charges that may be charged by it or
prescribe certain other terms of the financing documents that it
enters into with its customers. Management believes that the
additional administrative costs of complying with these
regulations will not materially affect the operations of the
Company.
-16-<PAGE>
EXECUTIVE OFFICERS OF THE REGISTRANT
<TABLE>
<CAPTION>
NAME AGE POSITION WITH THE COMPANY
---- --- -------------------------
<S> <S> <C>
William G. Miller....... 51 Chairman of the Board
Jeffrey I. Badgley...... 46 President, Chief Executive Officer and Director
Adam L. Dunayer......... 31 Vice President, Treasurer and Chief Financial Officer
Frank Madonia........... 49 Vice President, Secretary and General Counsel
J. Vincent Mish......... 47 Vice President and President of Financial Services Group
Daniel N. Sebastian..... 55 Vice President
</TABLE>
WILLIAM G. MILLER has served as Chairman of the Board since
April 1994. Mr. Miller served as Chief Executive Officer of the
Company from April 1994 to June 1997, as Co-Chief Executive
Officer of the Company from June 1997 to November 1997, and as
President of the Company from April 1994 to June 1996. He served
as Chairman of Miller Group, Inc., from August 1990 through May
1994, as its President from August 1990 to March 1993, and as its
Chief Executive Officer from March 1993 until May 1994. Prior to
1987, Mr. Miller served in various management positions for
Bendix Corporation, Neptune International Corporation, Wheelabrator-
Frye Inc. and The Signal Companies, Inc.
JEFFREY I. BADGLEY has served as Chief Executive Officer of
the Company since November 1997, as President since June 1996,
and as a director since January 1996. Mr. Badgley served as Co-
Chief Executive Officer of the Company from June 1997 to November
1997, as Chief Operating Officer of the Company from June 1996 to
June 1997 and as Vice-President of the Company from April 1994 to
June 1996. In addition, Mr. Badgley serves as President of
Miller Industries Towing Equipment Inc. Mr. Badgley served as
Vice President - Sales of Miller Industries Towing Equipment Inc.
from 1988 to 1996. Mr. Badgley served as Vice President - Sales
and Marketing of Challenger Wrecker Manufacturing, Inc., from
1982 until joining Miller Industries Towing Equipment Inc.
ADAM L. DUNAYER joined the Company in September 1996 and
serves as Vice President, Treasurer and Chief Financial Officer.
From 1989 to September 1996, Mr. Dunayer worked in investment
banking with Bear, Stearns & Co. Inc., most recently as Vice-
President. Mr. Dunayer has a wide range of experience in
corporate finance, including equity and debt financings, as well
as mergers and acquisitions and general advisory services.
FRANK MADONIA has served as Vice President, General Counsel
and Secretary of the Company since April 1994. Mr. Madonia
served as Secretary and General Counsel to Miller Industries
Towing Equipment Inc. since its acquisition by Miller Group in
1990. From July 1987 through April 1994, Mr. Madonia served as
Vice President, General Counsel and Secretary of Flow
Measurement. Prior to 1987, Mr. Madonia served in various legal
and management positions for United States Steel Corporation,
Neptune International Corporation, Wheelabrator-Frye Inc., The
Signal Companies, Inc. and Allied-Signal Inc. In addition, Mr.
Madonia is registered to practice before the United States Patent
and Trademark Office.
J. VINCENT MISH is a certified public accountant and has
served as President of the Financial Services Group since
September 1996 and as a Vice President of the Company since April
1994. From April 1994 through September 1996, Mr. Mish served as
Chief Financial Officer and Treasurer of the Company. Mr. Mish
served as Vice President and Treasurer of Miller Industries
Towing Equipment Inc. since its acquisition by Miller Group in
-17-<PAGE>
1990. From February 1987 through April 1994, Mr. Mish served as
Vice President and Treasurer of Flow Measurement. Mr. Mish
worked with Touche Ross & Company (now Deloitte and Touche) for
over ten years before serving as Treasurer and Chief Financial
Officer of DNE Corporation from 1982 to 1987. Mr. Mish is a
member of the American Institute of Certified Public Accountants
and the Tennessee, Georgia and Michigan Certified Public
Accountant societies.
DANIEL N. SEBASTIAN has served as Vice President of the
Company since April 1994. Mr. Sebastian has also served as
President of Champion Carrier Corporation ("Champion"), a wholly
owned subsidiary of the Company, since July 1993. Mr. Sebastian
served as Vice President of SAFEREC, Inc., a towing and recovery
distributorship, from 1987 until 1988, at which time he became
the operating manager of Champion. Mr. Sebastian has over 25
years of experience in the towing and recovery industry.
ITEM 2. PROPERTIES
The Company operates four manufacturing facilities in the
United States. The facilities are located in (i) Ooltewah,
Tennessee, (ii) Hermitage, Pennsylvania, (iii) Mercer,
Pennsylvania, and (iv) Greeneville, Tennessee. The Ooltewah
plant, containing approximately 180,000 square feet, produces
light and heavy duty wreckers; the Hermitage plant, containing
approximately 95,000 square feet, produces car carriers; the
Mercer plant, which was acquired in December 1997, contains
approximately 100,000 square feet, produces car carriers and
light duty wreckers; and the Greeneville plant, containing
approximately 100,000 square feet, primarily produces car
carriers.
The Company operates two foreign manufacturing facilities
located in the Lorraine region of France, which contain, in the
aggregate, approximately 100,000 square feet, and one in Norfolk,
England, which contains approximately 22,500 square feet.
Management believes that its existing manufacturing
facilities will allow the Company to meet anticipated demand for
its products.
In connection with its acquisition of 47 towing service
companies during fiscal 1998, the Company has acquired or entered
into leases for property at over 80 locations in 22 states.
These facilities are utilized as offices for administrative and
dispatch operations, garages for repair and upkeep of towing
vehicles, and lots for storage and impounding of towed cars.
RoadOne's corporate offices are housed in 10,000 square feet of
leased space in Chattanooga, Tennessee.
ITEM 3. LEGAL PROCEEDINGS
In January 1998, the Company received a letter from the
Antitrust Division of the Department of Justice (the "Division")
stating that it was conducting a civil investigation covering
"competition in the tow truck industry." The letter asked that
the Company preserve its records related to the tow truck
industry, particularly documents related to sales and prices of
products and parts, acquisition of other companies in the
industry, distributor relations, patent matters, competition in
the industry generally, and activities of other companies in the
industry. In March 1998, the Company received a Civil
Investigative Demand ("CID") issued by the Division as part of
-18-<PAGE>
its continuing investigation of whether there are, have been or
may be violations of the federal antitrust statutes in the tow
truck industry. Under this CID, the Company is required to
produce information and documents to assist the Division in its
investigation. It is unknown at this time what the eventual
outcome of the investigation will be. The Company is continuing
to cooperate with the government in its investigation.
During September, October and November 1997, five lawsuits
were filed by certain persons who seek to represent a class of
shareholders who purchased shares of the Company's common stock
during the period from either October 15 or November 6, 1996 to
September 11, 1997. Four of the suits were filed in the United
States District Court for the Northern District of Georgia. The
individual plaintiffs in these suits consist of Stephen Clark;
Karen Stauffer and Julie F. Dugo IRA; Erich R. Swett; and Manuel
Vela. The remaining suit was filed in the Chancery Court of
Hamilton County, Tennessee by John M. Constantine III. In
general, the individual plaintiffs in all of the cases allege
that they were induced to purchase the Company's common stock on
the basis of allegedly actionable misrepresentations or omissions
about the Company and its business and, as a result were thereby
damaged. Four of the complaints assert claims under Sections
10(b) and 20 of the Securities Act of 1934. The complaints name
as the defendants the Company and various of its present and
former directors and officers. The plaintiffs in the four
actions which involved claims in Federal Court under the
Securities Exchange Act of 1934 have consolidated those actions.
The Company filed a motion to dismiss in the consolidated case
which was granted in part and denied in part. The Company filed
a motion to dismiss in the Tennessee case which was granted in
its entirety. However, the plaintiffs in that case have
petitioned the Court for permission to amend their complaint. In
both these actions, the Company denies liability and continues to
vigorously defend itself.
The Company is, from time to time, a party to litigation
arising in the normal course of its business. Management
believes that none of these actions, individually or in the
aggregate, will have a material adverse effect on the financial
position or results of operations of the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders of
the Registrant during the fourth quarter of the fiscal year
covered by this Report.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
The Registrant's Common Stock is traded on the New York
Stock Exchange ("NYSE") under the symbol "MLR." The following
table sets forth the quarterly range of high and low sales prices
for the Common Stock for the period from May 1, 1996 through
April 30, 1998. The following prices have been adjusted to
reflect a 3-for-2 stock split effected in April 1996, a 2-for-1
stock split effected in September 1996, and a 3-for-2 stock split
effected in December, 1996, each in the form of a stock dividend.
<PAGE>
<TABLE>
<CAPTION>
HIGH LOW
---- ----
<S> <C> <C>
FISCAL YEAR ENDED APRIL 30, 1997
First Quarter $12.17 $ 8.50
Second Quarter $17.33 $11.00
Third Quarter $22.88 $14.67
Fourth Quarter $21.63 $ 9.75
-19-<PAGE>
Fiscal Year Ended April 30, 1998
First Quarter $17.63 $11.88
Second Quarter $18.25 $ 9.00
Third Quarter $12.00 $ 9.06
Fourth Quarter $11.44 $ 6.19
</TABLE>
The approximate number of holders of record and beneficial
owners of Common Stock as of July 22, 1998 was 1,862 and 10,000,
respectively.
The Company has never declared cash dividends on the Common
Stock. The Company intends to retain its earnings to finance the
expansion of its business and does not anticipate paying cash
dividends in the foreseeable future. Any future determination as
to the payment of cash dividends will depend upon such factors as
earnings, capital requirements, the Company's financial
condition, restrictions in financing agreements and other factors
deemed relevant by the Board of Directors. The payment of
dividends by the Company is restricted by its revolving credit
facility.
ITEM 6. SELECTED FINANCIAL DATA
The following table sets forth the selected consolidated
financial data of the Company, which should be read in
conjunction with "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and with the
Company's Consolidated Financial Statements and Notes thereto.
The selected consolidated financial data for the nine months
ended April 30, 1994 and the years ended April 30, 1995, 1996,
1997 and 1998 have been derived from the consolidated financial
statements of the Company audited by Arthur Andersen LLP,
independent public accountants. The selected consolidated
financial data for the twelve months ended April 30, 1994 have
been derived from the unaudited consolidated financial statements
of the Company which in the opinion of management, include all
adjustments (which consist of only normal recurring adjustments)
necessary for a fair presentation of the financial condition and
results of operations of the Company for those periods.
-20-<PAGE>
SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
Miller Industries, Inc. and Subsidiaries Twelve Nine
Selected Financial Data Years Ended Months Months
(In thousands except per share data) April 30, Ended Ended
-------------------------------------------------- April 30, April 30,
1998 1997 1996 1995 1994 <F1> 1994 <F2>
---------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
STATEMENTS OF INCOME DATA:
Net sales $397,213 $292,394 $180,463 $139,779 $94,601 $74,192
Costs and expenses:
Costs of operations 319,453 238,625 148,490 113,439 72,985 57,306
Selling, general and
administrative expenses 49,420 30,192 17,629 14,750 15,273 11,508
Restructuring costs 4,100 - - - - -
Interest expense, net 3,389 620 209 370 409 338
-------------------------------------------------------------------------------
Total costs and expenses 376,362 269,437 166,328 128,559 88,667 69,152
Income before income taxes, extraordinary
gain, and cumulative effect of
accounting change 20,851 22,957 14,135 11,220 5,934 5,040
Income taxes 8,186 8,436 5,108 3,736 1,644 1,620
-------------------------------------------------------------------------------
Income before extraordinary gain and
cumulative effect of accounting change 12,665 14,521 9,027 7,484 4,290 3,420
Extraordinary gain on debt retirement
(less applicable income taxes of $175
in 1995 and $26 in 1994) - - - 288 1,143 1,143
Cumulative effect of change in
accounting for income taxes - - - - 781 781
-------------------------------------------------------------------------------
Net income 12,665 14,521 9,027 7,772 6,214 5,344
Preferred stock dividends - - - - (66) (38)
-------------------------------------------------------------------------------
Net income available for common
shareholders $12,665 $14,521 $9,027 $7,772 $6,148 $5,306
===============================================================================
Basic net income per common share <F3>:
Before extraordinay gain and cumulative
effect of accounting change $ 0.28 $ 0.37 $ 0.27 $ 0.26 $ 0.20 $ 0.16
Extraordinary gain on debt retirement - - - 0.01 0.05 0.05
Cumulative effect of change in accounting
for income taxes - - - - 0.04 0.04
-------------------------------------------------------------------------------
$ 0.28 $ 0.37 $ 0.27 $ 0.27 $ 0.29 $ 0.25
===============================================================================
Weighted average common shares
outstanding 44,559 39,565 33,172 28,797 21,072 21,072
===============================================================================
Diluted net income per common share <F3>:
Before extraordinay gain and cumulative
effect of accounting change $ 0.27 $ 0.35 $ 0.26 $ 0.25 $ 0.20 $ 0.16
Extraordinary gain on debt retirement - - - 0.01 0.05 0.05
Cumulative effect of change in accounting
for income taxes - - - - 0.04 0.04
-------------------------------------------------------------------------------
$ 0.27 $ 0.35 $ 0.26 $ 0.26 $ 0.29 $ 0.25
===============================================================================
Weighted average common & potential
dilutive common shares outstanding 46,201 41,454 34,102 29,428 21,072 21,072
===============================================================================
BALANCE SHEET DATA (AT PERIOD END):
Working capital $104,774 $61,980 $52,438 $19,011 $ - $ 9,382
Total assets 329,730 215,297 123,978 66,018 - 42,156
Long-term obligations, less current portion 95,778 11,282 9,335 5,171 - 17,848
Cumulative redeemable preferred stock - - - - - 4,094
Common shareholders' equity (deficit) 180,236 138,783 71,913 32,320 - 2,443
____________________________
<FN>
<F1> The twelve month period ended April 30, 1994 is presented for comparison only.
<F2> In connection with a reorganization preceding the Company's initial public offering in
fiscal 1995, the Company adopted an April 30 year end.
<F3> Basic and diluted net income per common share and the weighted average number of common
and potential dilutive common shares outstanding are computed after giving retroactive
effect to the 3-for-2 stock split effected on April 12, 1996, the 2-for-1 stock split
effected on September 30, 1996, the 3-for-2 stock split effected
on December 30, 1996, and the issuance of 18,472,500 shares of common stock in connection with the
reorganization in April 1994.
</TABLE>
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion of the results of operations and
financial condition of the Company should be read in conjunction
with the Consolidated Financial Statements and Notes thereto.
GENERAL
Under the Company's accounting policies, sales are recorded
when equipment is shipped to independent distributors or other
customers. While the Company manufactures only the bodies of
wreckers, which are installed on truck chassis manufactured by
third parties, the Company sometimes purchases the truck chassis
for resale to its customers. Sales of Company-purchased truck
chassis are included in net sales. Margins are substantially
lower on completed recovery vehicles containing Company-purchased
chassis because the markup over the cost of the chassis is
nominal. Revenue from Company owned distributors is recorded at
the time equipment is shipped to customers or services are
rendered. The towing services division recognizes revenue at the
time services are performed.
The Company's net sales have historically been lower in its
first quarter when compared to the prior quarter due in part to
decisions by purchasers of light duty wreckers to defer wrecker
purchases near the end of the chassis model year. The Company's
net sales have historically been relatively stronger in its
fourth quarter due in part to sales made at the largest towing
and recovery equipment trade show.
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated,
the components of the consolidated statements of income expressed
as a percentage of net sales.
<TABLE>
<CAPTION>
Years ended April 30,
-----------------------------------------
1998 1997 1996
-----------------------------------------
<S> <C> <C> <C>
Net sales 100.0% 100.0% 100.0%
Costs and expenses:
Costs of operations 80.4% 81.6% 82.3%
Selling, general and administrative 12.4% 10.3% 9.8%
Restructuring costs 1.0% 0.0% 0.0%
Interest expense, net 0.9% 0.2% 0.1%
-----------------------------------------
Total cost and expenses 94.8% 92.1% 92.2%
Income before income taxes 5.2% 7.9% 7.8%
Income taxes 2.1% 2.9% 2.8%
-----------------------------------------
Net income 3.2% 5.0% 5.0%
==========================================
/TABLE
<PAGE>
YEAR ENDED APRIL 30, 1998 COMPARED TO YEAR ENDED APRIL 30, 1997
Net sales for the year ended April 30, 1998 increased 35.8%
to $397.2 million from $292.4 million for the comparable period
in 1997. The increase in net sales was primarily the result of
(i) higher unit sales in the Company's manufacturing divisions,
(ii) the inclusion for a full year of sales of the distributors
and towing service companies acquired during fiscal 1997, (iii)
the inclusion since the acquisition dates in fiscal 1998 of sales
from the Chevron manufacturing operation acquisition and from the
distributors and towing service companies acquired via purchase
transactions, (iv) a higher level of sales by the Company-owned
distributors and the towing service companies acquired in fiscal
1998 in pooling-of-interests transactions, and (v) an increase in
sales of truck chassis sold by the domestic manufacturing
operations to third parties.
Cost of operations as a percentage of net sales decreased
slightly to 80.4% for the year ended April 30, 1998 from 81.6%
for the comparable prior year period. This reduction was
primarily a result of the Company's towing service division,
which generally has a lower level of operating costs than the
manufacturing and distribution division, accounting for a higher
proportion of revenue in fiscal 1998.
Selling, general and administrative expenses for fiscal 1998
increased 63.7% to $49.4 million from $30.2 million for the
comparable period of fiscal 1997. The increase was due primarily
to the impact of the significant expansion of the Company's
business referred to above and to incremental resources added to
support the Company's growth. As a percentage of net sales,
selling, general and administrative expenses increased from 10.3%
in fiscal 1997 to 12.4% in fiscal 1998 primarily as a result of
the Company's towing services division, which generally has a
higher level of selling, general and administrative costs than
the manufacturing and distribution division.
During the second quarter of fiscal 1998, the Company
recorded a one-time pretax charge of $4.1 million for the Olive
Branch, Mississippi facility closure and consolidation of
manufacturing operations.
Net interest expense for fiscal 1998 increased $2.8 million
to $3.4 million from $.6 million for fiscal 1997 primarily due to
increased borrowings under the Company's line of credit to fund
working capital needs and additional acquisitions of businesses.
The effective rate of the provision for income taxes was
39.3% for fiscal 1998 and 36.7% for fiscal 1997. The increase
was due primarily to the impact of a higher level of
nondeductible goodwill amortization in fiscal 1998.
-23-
<PAGE>
YEAR ENDED APRIL 30, 1997 COMPARED TO YEAR ENDED APRIL 30, 1996
Net sales for the year ended April 30, 1997 increased 62.0%
to $292.4 million from $180.5 million for the comparable period
in 1996. The increase in net sales was primarily the result of
(i) higher unit sales in all of the Company's manufacturing
product lines, (ii) the inclusion for a full year of sales of
the two European manufacturing operations acquired in January and
April 1996, (iii) the inclusion since the acquisition dates in
fiscal 1997 of sales from the distributors and towing service
companies acquired via purchase transactions, (iv) a higher level
of sales by the Company-owned distributors and the towing service
companies acquired in fiscal 1997 in pooling-of-interests
transactions and, (v) an increase in sales of truck chassis sold
by the domestic manufacturing operations to third parties.
Cost of operations as a percentage of net sales decreased
slightly to 81.6% for the year ended April 30, 1997 from 82.3%
for the comparable prior year period. This reduction was
primarily a result of the Company's towing service division,
which generally has a lower level of operating costs than the
manufacturing and distribution division, accounting for a higher
proportion of revenue in fiscal 1997 than in fiscal 1996.
Selling, general and administrative expenses for fiscal 1997
increased 71.3% to $30.2 million from $17.6 million for the
comparable period of fiscal 1996. The increase was due primarily
to the impact of the significant expansion of the Company's
business referred to above and to incremental resources added to
support the Company's growth. As a percentage of net sales,
selling, general and administrative expenses increased slightly
from 9.8% in fiscal 1996 to 10.3% in fiscal 1997 primarily as a
result of the Company's towing services division, which generally
has a higher level of selling, general and administrative costs
than the manufacturing and distribution division.
Net interest expense for fiscal 1997 increased $.4 million
to $.6 million from $.2 million for fiscal 1996 primarily due to
interest expense of the businesses acquired in fiscal 1997
exceeding the interest income from the investment of available
cash balances.
The effective rate of the provision for income taxes was
36.7% for fiscal 1997 and 36.1% for fiscal 1996.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary capital requirements are for working
capital, debt service, and capital expenditures. The Company
has financed its operations and growth from internally generated
funds and debt financing and, since August 1994, in part from the
proceeds from its initial public offering and its subsequent
public offerings completed in January 1996 and November 1996.
The net proceeds of the public offerings were used to repay long-
term debt, including that of acquired companies, redeem
cumulative preferred stock of a wholly owned subsidiary, increase
working capital, provide funds for capital expenditures,
acquisition of businesses, and other general corporate purposes.
Capital used in operating activities was $20.3 million for
the year ended April 30, 1998 as compared to $11.0 million used
in operations for the comparable period of 1997. The cash used
in operating activities in fiscal 1998 was primarily for the
purpose of supporting the growth of the business in both
manufacturing and distribution.
The reduction in accounts payable was primarily due to
a change in the Company's Chassis purchasing policy.
-24-<PAGE>
Cash used in investing activities was $46.3 million for the
year ended April 30, 1998 compared to $22.9 million for the year
ended April 30, 1997. The cash used in investing activities was
primarily for the acquisition of companies and for capital
expenditures.
Cash provided by financing activities was $65.5 million for
the year ended April 30, 1998 compared to $17.3 million for the
comparable period in 1997. In November 1996, the Company
completed a public offering of its Common Stock which resulted in
net proceeds after underwriting discounts and offering expenses
of $29.2 million. The cash was provided primarily by borrowings
under the Company's credit facilities of $85 million reduced by
payments on debt obligations of $17.3 million and the repurchase
of its common stock of $4.2 million. The net proceeds were used
to repay debt, including that of acquired companies, purchase a
car carrier production plant in January 1997, for other capital
expenditures, for working capital, for the acquisition of companies,
and for other general corporate purposes.
At April 30, 1998, the Company had a $150 million unsecured
revolving credit facility with a group of banks (the "Credit
Facility"). Borrowings under the Credit Facility bear interest
at a rate equal to the London interbank offered rate plus a
margin ranging from 0.625% to 1.5% based on a specified ratio of
funded indebtedness to earnings, or the prime rate. At April 30,
1998, $85 million was outstanding under the Credit Facility. The
Credit Facility imposes restrictions on the Company with respect
to the maintenance of certain financial ratios, the incurrence of
indebtedness, the sale of assets, capital expenditures, mergers
and acquisitions. On May 1, 1998, the Company entered into an
interest rate swap agreement covering $50 million of the
underlying debt obligations. The agreement fixes the interest
rate at 5.68% plus the applicable margin for a period of three
years unless canceled by the bank at the end of two years.
The Company's board of directors approved a share repurchase
plan during fiscal 1998 under which the Company may repurchase up
to 2,000,000 shares of its common stock from time to time until
September 30, 1998. It is expected that such repurchased shares
would be issued as consideration in business acquisitions
currently being negotiated pursuant to the Company's ongoing
acquisition strategy. All shares purchased under the plan during
fiscal 1998 (547,900 shares at a cost of $4.2 million) were
reissued as consideration for towing services companies acquired
prior to April 30, 1998.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board
issued Statement of Financial Accounting ("SFAS") No. 130,
"Reporting Comprehensive Income" and No. 131, "Disclosures about
Segments of an Enterprise and Related Information". The Company
will adopt the provisions for both statements during fiscal 1999.
The effects these statements will have on financial reporting and
disclosures are currently being evaluated. Management believes
adoption of SFAS No. 130 and SFAS No. 131 will not have a
significant impact on the Consolidated Financial Statements.
YEAR 2000
The Company utilizes software and related technologies
throughout its businesses that will be affected by the date
change in the year 2000. The Company is currently reviewing its
systems for year 2000 compliance in its design, purchase and
installation processes. Anticipated costs of systems
modifications for compliance are not expected to have material
impact on the Company's consolidated results of operations.
The Company does not currently have any information concerning
the year 2000 compliance status of its suppliers and customers. In
the event that any of the Company's significant suppliers or customers
does not successfully and timely achieve year 2000 compliance, the
Company's business or operations could be adversely affected.
-25-<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The response to this item is included in Part IV, Item 14 of
this Report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information contained under the headings "PROPOSAL 1:
ELECTION OF DIRECTORS" and "COMPLIANCE WITH SECTION 16(A) OF THE
SECURITIES EXCHANGE ACT OF 1934" in the definitive Proxy
Statement used in connection with the solicitation of proxies for
the Registrant's Annual Meeting of Shareholders to be held
September 11, 1998, filed with the Commission, is hereby
incorporated herein by reference. Pursuant to Instruction 3 to
Paragraph (b) of Item 401 of Regulation S-K, information relating
to the executive officers of the Registrant is included in Item 1
of this Report.
ITEM 11. EXECUTIVE COMPENSATION
The information contained under the heading "EXECUTIVE
COMPENSATION" in the definitive Proxy Statement used in
connection with the solicitation of proxies for the Registrant's
Annual Meeting of Shareholders to be held September 11, 1998,
filed with the Commission, is hereby incorporated herein by
reference. The information contained in the Proxy Statement
under the headings "Compensation Committee Report on Executive
Compensation" and "Performance Graph" shall not be deemed
incorporated herein by such reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The information contained under the heading "SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT" in the
definitive Proxy Statement used in connection with the
solicitation of proxies for the Registrant's Annual Meeting of
Shareholders to be held September 11, 1998, filed with the
Commission, is hereby incorporated herein by reference.
For purposes of determining the aggregate market value of
the Registrant's voting stock held by nonaffiliates, shares held
by all current directors and executive officers of the Registrant
have been excluded. The exclusion of such shares is not intended
to, and shall not, constitute a determination as to which persons
or entities may be "affiliates" of the Registrant as defined by
the Securities and Exchange Commission.
-26-<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K
(a) The following documents are filed as part of this
Report:
1. Financial Statements
<TABLE>
<CAPTION>
Page Number in
Description Report
- ----------- --------------
<S> <C>
Report of Independent Public Accountants............................................................ F-1
Consolidated Balance Sheets as of April 30, 1998 and 1997........................................... F-2
Consolidated Statements of Income for the years ended April 30, 1998, 1997, and 1996................ F-3
Consolidated Statements of Shareholders' Equity (Deficit) for the years ended April 30,
1998, 1997, and 1996............................................................................. F-4
Consolidated Statements of Cash Flows for the years ended April 30, 1998, 1997, and
1996............................................................................................ F-5
Notes to Consolidated Financial Statements.......................................................... F-6
</TABLE>
2. FINANCIAL STATEMENT SCHEDULES
The following Financial Statement Schedule for the
Registrant is filed as part of this Report and should be read in
conjunction with the Consolidated Financial Statements:
<TABLE>
<CAPTION>
Page Number in
Description Report
- ----------- --------------
<S> <C>
Report of Independent Public Accountants......................................................... S-1
Schedule II - Valuation and Qualifying Accounts.................................................. S-2
</TABLE>
All schedules, except those set forth above, have been omitted
since the information required is included in the financial
statements or notes or have been omitted as not applicable or not
required.
-27-
<PAGE>
3. Exhibits
The following exhibits are required to be filed with this
Report by Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
INCORPORATED BY
REFERENCE TO FORM EXHIBIT
REGISTRATION OR FILE OR DATE OF NUMBER IN
DESCRIPTION NUMBER REPORT REPORT REPORT
------------------------------- -------------------- ------ ----------- ---------
<C> <S> <C> <C> <C> <C>
3.1 Charter of the Registrant (composite *
conformed copy)
3.2 Bylaws of the Registrant 33-79430 S-1 August 1994 3.2
10.1 Settlement Letter dated April 27, 33-79430 S-1 August 1994 10.7
1994 between Miller Group, Inc. and
the Management Group
10.5 Participants Agreement dated as of 33-79430 S-1 August 1994 10.11
April 30, 1994 between the
Registrant, Century Holdings, Inc.,
Century Wrecker Corporation, William
G. Miller and certain former
shareholders of Miller Group, Inc.
10.20 Technology Transfer Agreement dated 33-79430 S-1 August 1994 10.26
March 21, 1991 between Miller Group,
Inc., Verducci, Inc. and Jack
Verducci
10.21 Form of Noncompetition Agreement 33-79430 S-1 August 1994 10.28
between the Registrant and certain
officers of the Registrant
10.22 Form of Nonexclusive Distributor 33-79430 S-1 August 1994 10.31
Agreement
10.23 Miller Industries, Inc. Stock Option 33-79430 S-1 August 1994 10.1
and Incentive Plan**
10.24 Form of Incentive Stock Option 33-79430 S-1 August 1994 10.2
Agreement**
10.25 Miller Industries, Inc. Cash Bonus 33-79430 S-1 August 1994 10.3
Plan**
10.26 Miller Industries, Inc. Non-Employee 33-79430 S-1 August 1994 10.4
Director Stock Option Plan**
</TABLE>
-28-<PAGE>
<TABLE>
<CAPTION>
INCORPORATED BY
REFERENCE TO FORM EXHIBIT
REGISTRATION OR FILE OR DATE OF NUMBER IN
DESCRIPTION NUMBER REPORT REPORT REPORT
------------------------------- -------------------- ------ ----------- ---------
<C> <S> <C> <C> <C> <C>
10.27 Form of Director Stock Option 33-79430 S-1 August 1994 10.5
Agreement**
10.28 Employment Agreement dated October 33-79430 S-1 August 1994 10.29
14, 1993 between Century Wrecker
Corporation and Jeffrey I. Badgley**
10.29 First Amendment to Employment 33-79430 S-1 August 1994 10.33
Agreement between Century Wrecker
Corporation and Jeffrey I. Badgley**
10.30 Form of Employment Agreement between - Form 10-K April 30, 1995 10.37
Registrant and each of Messrs.
Madonia and Mish**
10.31 First Amendment to Miller Industries, - Form 10-K April 30, 1995 10.38
Inc. Non-Employee Director Stock
Option Plan**
10.32 Second Amendment to Miller - Form 10-K April 30, 1996 10.39
Industries, Inc. Non-Employee
Director Stock Option Plan**
10.33 Second Amendment to Miller - Form 10-K April 30, 1996 10.40
Industries, Inc. Stock Option and
Incentive Plan**
10.34 Employment Agreement dated July 8, 0-24298 Form 10-Q/A July 31, 1997 10
1997 between the Registrant and
William G. Miller**
10.35 Credit Agreement Among NationsBank of *
Tennessee, N.A., the Registrant and
certain subsidiaries of Registrant
dated January 30, 1998.
10.36 Negative Pledge Agreement Among *
NationsBank of Tennessee, N.A., the
Registrant and certain subsidiaries
of Registrant dated January 30, 1998.
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
INCORPORATED BY
REFERENCE TO FORM EXHIBIT
REGISTRATION OR FILE OR DATE OF NUMBER IN
DESCRIPTION NUMBER REPORT REPORT REPORT
------------------------------- -------------------- ------ ----------- ---------
<C> <S> <C> <C> <C> <C>
10.37 Guaranty Agreement Among NationsBank *
of Tennessee, N.A. and certain
subsidiaries of Registrant dated
January 30, 1998.
10.38 Stock Pledge Agreement Between *
NationsBank of Tennessee, N.A. and
the Registrant dated January 30,
1998.
10.39 Stock Pledge Agreement Between *
NationsBank of Tennessee, N.A. and
the certain subsidiaries of the
Registrant dated January 30, 1998.
10.40 Revolving Note Among NationsBank of *
Tennessee, N.A., the Registrant and
certain subsidiaries of Registrant
dated January 30, 1998.
10.41 Revolving Note Among Bank of America, *
FSB, the Registrant and certain
subsidiaries of Registrant dated
January 30, 1998.
10.42 Revolving Note Among Wachovia Bank, *
N.A., the Registrant and certain
subsidiaries of Registrant dated
January 30, 1998.
10.43 Revolving Note Among First American *
National Bank, the Registrant and
certain subsidiaries of Registrant
dated January 30, 1998.
10.44 Swing Line Note Among NationsBank of *
Tennessee, N.A., the Registrant and
certain subsidiaries of Registrant
dated January 30, 1998.
10.45 LC Account Agreement Among *
NationsBank of Tennessee, N.A., the
Registrant and certain subsidiaries
of Registrant dated January 30, 1998.
10.46 Amendment No. 1 to the Credit *
Agreement Among NationsBank of
Tennessee, N.A., the Registrant and
certain subsidiaries of Registrant
dated January 31, 1998.
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
INCORPORATED BY
REFERENCE TO FORM EXHIBIT
REGISTRATION OR FILE OR DATE OF NUMBER IN
DESCRIPTION NUMBER REPORT REPORT REPORT
------------------------------- -------------------- ------ ----------- ---------
<C> <S> <C> <C> <C> <C>
21 Subsidiaries of the Registrant *
23 Consent of Arthur Andersen LLP *
24 Power of Attorney (see signature *
page)
27 Financial Data Schedule *
____________________
* Filed herewith.
** Management contract or compensatory plan or arrangement
(b) The Registrant filed reports on Form 8-K on February 25,
1998, March 4, 1998 and April 2, 1998, each under Item 5.
(c) The Registrant hereby files as exhibits to this Report
the exhibits set forth in Item 14(a)3 hereof.
(d) The Registrant hereby files as financial statement
schedules to this Report the financial statement schedules set
forth in Item 14(a)2 hereof.
-31-<PAGE>
Miller Industries, Inc. and Subsidiaries
Consolidated Financial Statements as of April 30, 1998 and
1997
Together With
Auditors' Report<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Miller Industries, Inc.:
We have audited the accompanying consolidated balance sheets of
MILLER INDUSTRIES, INC. (a Tennessee corporation) AND
SUBSIDIARIES as of April 30, 1998 and 1997 and the related
consolidated statements of income, shareholders' equity, and cash
flows for each of the three years in the period ended April 30,
1998. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial position
of Miller Industries, Inc. and subsidiaries as of April 30, 1998
and 1997 and the results of their operations and their cash flows
for each of the three years in the period ended April 30, 1998 in
conformity with generally accepted accounting principles.
ARTHUR ANDERSEN LLP
Chattanooga, Tennessee
July 15, 1998
F-1
<PAGE>
MILLER INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
APRIL 30, 1998 AND 1997
(In thousands, except per share data)
</TABLE>
<TABLE>
<CAPTION>
ASSETS 1998 1997
- ------------------------------------------------------ -------- ---------
<S> <C> <C>
CURRENT ASSETS:
Cash and temporary investments $ 7,367 $ 8,508
Accounts receivable, net of allowance for doubtful
accounts of $2,117 and $1,774 in 1998 and 1997, 67,008 49,844
respectively
Inventories 71,839 60,574
Deferred income taxes 4,217 4,541
Prepaid expenses and other 5,362 1,885
-------- -------
Total current assets 155,793 125,352
PROPERTY, PLANT, AND EQUIPMENT, net 85,849 49,171
GOODWILL, net 81,605 36,916
PATENTS, TRADEMARKS, AND OTHER PURCHASED
PRODUCT RIGHTS, net 1,276 908
OTHER ASSETS 5,207 2,950
-------- --------
$329,730 $215,297
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of long-term obligations $ 4,900 $ 4,479
Accounts payable 27,883 38,548
Accrued liabilities and other 18,236 20,345
-------- --------
Total current liabilities 51,019 63,372
-------- --------
LONG-TERM OBLIGATIONS, less current portion 95,778 11,282
-------- --------
DEFERRED INCOME TAXES 2,697 1,860
-------- --------
COMMITMENTS AND CONTINGENCIES (Notes 3, 7 and 9)
SHAREHOLDERS' EQUITY:
Preferred stock, $.01 par value; 5,000,000 shares
authorized, none issued or outstanding 0 0
Common stock, $.01 par value; 100,000,000 shares
authorized, 45,941,814 and 42,480,202 shares issued
and outstanding at 1998 and 1997, respectively 459 425
Additional paid-in capital 139,480 110,773
Retained earnings 40,862 28,027
Cumulative translation adjustment (565) (442)
-------- --------
Total shareholders' equity 180,236 138,783
-------- --------
$329,730 $215,297
======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated
balance sheets.
F-2<PAGE>
<TABLE>
<CAPTION>
MILLER INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE YEARS ENDED APRIL 30, 1998, 1997, AND 1996
(In thousands, except per share data)
1998 1997 1996
-------- --------- ---------
<S> <C> <C> <C>
NET SALES $397,213 $292,394 $180,463
COSTS AND EXPENSES:
Costs of operations 319,453 238,625 148,490
Selling, general, and administrative expenses 49,420 30,192 17,629
Restructuring costs 4,100 0 0
Interest expense, net 3,389 620 209
-------- --------- --------
Total costs and expenses 376,362 269,437 166,328
INCOME BEFORE INCOME TAXES 20,851 22,957 14,135
INCOME TAXES 8,186 8,436 5,108
-------- --------- --------
NET INCOME $ 12,665 $ 14,521 $ 9,027
======== ========= ========
NET INCOME PER COMMON SHARE:
BASIC $ 0.28 $ 0.37 $ 0.27
======== ========= ========
DILUTED $ 0.27 $ 0.35 $ 0.26
======== ========= ========
WEIGHTED AVERAGE SHARES OUTSTANDING:
BASIC 44,559 39,565 33,172
======== ========= ========
DILUTED 46,201 41,454 34,102
======== ========= ========
</TABLE>
The accompanying notes are an integral part of these
consolidated statements.
F-3<PAGE>
<TABLE>
<CAPTION>
MILLER INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
FOR THE YEARS ENDED APRIL 30, 1998, 1997, AND 1996
(In thousands, except share data)
Cumulative
Common Additional Retained Translation
Stock Paid-In Capital Earnings Adjustment Total
----- -------------- -------- ----------- -----
<S> <C> <C> <C> <C> <C>
BALANCE, APRIL 30, 1995 $318 $ 23,985 $ 8,730 $ 0 $ 33,033
Issuance of 5,400,000 common shares through a public offering 54 30,124 0 0 30,178
Issuance of 80,502 common shares in acquisition 1 614 0 0 615
Exercise of stock options 0 37 0 0 37
Other stock issuance 0 48 0 0 48
Distributions to former shareholders of Pooled Entities 0 0 (1,008) 0 (1,008)
Net income 0 0 9,027 0 9,027
Net translation adjustments 0 0 0 (17) (17)
---- --------- ------- ------- --------
BALANCE, April 30, 1996 373 54,808 16,749 (17) 71,913
Exercise of stock options 6 1,170 0 0 1,176
Issuance of 1,943,028 common shares through a public offering 19 29,225 0 0 29,244
Issuance of 2,709,503 common shares in acquisitions 27 25,570 (2,530) 0 23,067
Distributions to former shareholders of Pooled Entities 0 0 (713) 0 (713)
Net income 0 0 14,521 0 14,521
Net translation adjustments 0 0 0 (425) (425)
---- --------- ------- ------- --------
BALANCE, April 30, 1997 425 110,773 28,027 (442) 138,783
Exercise of stock options 2 1,558 0 0 1,560
Issuance of 3,709,560 common shares in acquisitions 37 31,356 170 0 31,563
Repurchase of 547,900 common shares (5) (4,207) 0 0 (4,212)
Net income 0 0 12,665 0 12,665
Net translation adjustments 0 0 0 (123) (123)
---- --------- ------- ------- --------
BALANCE, April 30, 1998 $459 $ 139,480 $40,862 $ (565) $180,236
==== ========= ======= ======= ========
</TABLE>
The accompanying notes are an integral part of these
consolidated statements.
F-4<PAGE>
MILLER INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED APRIL 30, 1998, 1997, AND 1996
(In thousands)
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- --------
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income $ 12,665 $ 14,521 $ 9,027
Adjustments to reconcile net income to net cash (used in)
provided by operating activities:
Depreciation and amortization 10,247 5,782 2,762
Gain on disposals of property, plant, and equipment (1,359) (170) (161)
Deferred income tax provision (benefit) 927 (703) 373
Changes in operating assets and liabilities:
Accounts receivable (13,281) (10,385) (9,836)
Inventories (2,316) (20,442) (6,857)
Prepaid expenses and other (2,462) 1,312 (454)
Accounts payable (17,993) ( 1,124) 5,827
Accrued liabilities and other (6,742) 200 918
--------- --------- --------
Net cash (used in) provided by operating activities (20,314) (11,009) 1,599
--------- --------- --------
INVESTING ACTIVITIES:
Purchases of property, plant, and equipment (26,515) (11,073) (10,407)
Proceeds from sales of property, plant, and equipment 4,345 297 449
Payments received on notes receivable 627 0 0
Proceeds from sale of finance receivables 3,861 24,596 0
Acquisition of businesses, net of cash acquired (25,286) (7,701) (3,567)
Funding of finance receivables (2,262) (28,679) 0
Other (1,027) (304) (91)
--------- --------- --------
Net cash used in investing activities (46,257) (22,864) (13,616)
--------- --------- --------
FINANCING ACTIVITIES:
Proceeds from issuance of common stock 0 29,244 30,178
Repurchase of common stock (4,212) 0 0
Proceeds from exercise of stock options 966 546 37
Net borrowings (payments) under line of credit 85,000 (5,236) (522)
Borrowings under long-term obligations 1,020 1,374 6,346
Payments on long-term obligations (17,292) (7,365) (1,771)
Distributions to former shareholders of Pooled Entities 0 (713) (1,008)
Other 0 (560) 0
--------- --------- --------
Net cash provided by financing activities 65,482 17,290 33,260
========= ========= ========
EFFECT OF EXCHANGE RATE CHANGES ON CASH AND TEMPORARY
INVESTMENTS (52) (26) (2)
--------- --------- --------
NET (DECREASE) INCREASE IN CASH AND TEMPORARY INVESTMENTS (1,141) (16,609) 21,241
CASH AND TEMPORARY INVESTMENTS, beginning of year 8,508 25,117 3,876
--------- --------- --------
CASH AND TEMPORARY INVESTMENTS, end of year $ 7,367 $ 8,508 $ 25,117
========= ========= ========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash payments for interest $ 3,440 $ 1,298 $ 430
========= ========= ========
Cash payments for income taxes $ 7,662 $ 7,898 $ 4,826
========= ========= ========
</TABLE>
The accompanying notes are an integral part of these
consolidated statements.
F-5<PAGE>
MILLER INDUSTRIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
APRIL 30, 1998 AND 1997
1. ORGANIZATION AND NATURE OF OPERATIONS
Miller Industries, Inc. and subsidiaries ("the Company") is an
integrated provider of vehicle towing and recovery equipment, systems
and services. The principal markets for the towing and recovery
equipment are independent distributors and users of towing and
recovery equipment located primarily throughout the United States,
Canada, Europe, Asia, and the Middle East. The Company's products
are marketed under the brand names of Century, Challenger, Holmes,
Champion, Eagle, Jige, Boniface, Vulcan, and Chevron. The truck
chassis on which towing and recovery equipment are installed are
either purchased by Miller or provided by customers.
The Company markets its towing and recovery services in the United
States through its wholly-owned subsidiary RoadOne, Inc. ("RoadOne").
At various dates during 1998, the Company acquired certain companies
in separate transactions that have been accounted for as poolings of
interests. The pro forma impact of these acquisitions on net income
and earnings per share was not significant for the periods presented
herein. At various dates during 1997, the Company acquired certain
companies in separate transactions that have been accounted for as
poolings of interests. These companies are referred to collectively
as the "Pooled Entities." See Note 3, Business Combinations, for
further discussion of these transactions.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
USE OF ESTIMATES IN THE PREPARATION OF FINANCIAL STATEMENTS
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results
could differ from those estimates.
CONSOLIDATION
The accompanying consolidated financial statements include the
accounts of Miller Industries, Inc. and its subsidiaries. All
significant intercompany transactions and balances have been
eliminated.
CASH AND TEMPORARY INVESTMENTS
Cash and temporary investments include all cash and cash equivalent
investments with original maturities of three months or less,
primarily consisting of repurchase agreements.
FAIR VALUE OF FINANCIAL INSTRUMENTS
F-6
<PAGE>
The carrying values of cash and temporary investments, accounts
receivable, accounts payable, and accrued liabilities are reasonable
estimates of their fair values because of the short maturity of these
financial instruments. The carrying values of long-term obligations
are reasonable estimates of their fair values based on the rates
available for obligations with similar terms and maturities.
INVENTORIES
Inventory costs include materials, labor, and factory overhead.
Inventories are stated at the lower of cost or market, determined on
a first-in, first-out basis. Inventories at April 30, 1998 and 1997
consisted of the following (in thousands):
1998 1997
--------- ---------
Chassis $ 14,211 $ 18,837
Raw materials 22,027 16,257
Work in process 11,470 7,843
Finished goods 24,131 17,637
--------- ---------
$ 71,839 $ 60,574
========= =========
PROPERTY, PLANT, AND EQUIPMENT
Property, plant, and equipment are recorded at cost. Depreciation
for financial reporting purposes is provided using the straight-line
method over the estimated useful lives of the assets. Accelerated
depreciation methods are used for income tax purposes. Estimated
useful lives range from 20 to 30 years for buildings and improvements
and 5 to 10 years for machinery and equipment, furniture, fixtures,
vehicles, and software costs. Expenditures for routine maintenance
and repairs are charged to expense as incurred. Expenditures related
to major overhauls and refurbishments of towing services equipment
that extend the related useful lives are capitalized. Internal labor
is used in certain capital projects.
Property, plant, and equipment at April 30, 1998 and 1997 consisted
of the following (in thousands):
1998 1997
---------- -----------
Land $ 5,027 $ 3,181
Buildings and improvements 18,849 16,550
Machinery and equipment 80,302 39,302
Furniture and fixtures 8,448 9,402
Software costs 1,660 0
Construction in progress 957 1,193
---------- -----------
115,243 69,628
Less accumulated depreciation (29,394) (20,457)
---------- -----------
$ 85,849 $ 49,171
========== ===========
NET INCOME PER SHARE
During the third quarter of fiscal 1998, the Company adopted
Statement of Financial Accounting Standards ("SFAS") No. 128,
"Earnings Per Share", which was effective December 15, 1997. All
prior year net income per share amounts have been restated to reflect
adoption of the new standard. The adoption of SFAS No. 128 did not
have a material effect on the Company's earnings per share amounts.
F-7<PAGE>
Basic net income per share is computed by dividing net income by the
weighted average number of common shares outstanding. Diluted net
income per share takes into consideration the assumed conversion of
outstanding stock options resulting in 1.6 million, 1.9 million and
0.9 million potential dilutive common shares for the years ended April 30,
1998, 1997, and 1996 respectively. Diluted net income per share is
calculated by dividing net income by the weighted average number of
common and potential dilutive common shares outstanding. Per share
amounts do not include the assumed conversion of stock options with
exercise prices greater than the average share price because to do so
would have been antidilutive for the periods presented.
In April 1996, September 1996, and December 1996, the Company
effected a three-for-two, a two-for-one, and a three-for-two common
stock split, respectively, each in the form of a stock dividend. All
historical share and per share amounts have been retroactively
restated to reflect the common stock splits.
GOODWILL
Goodwill is being amortized on a straight-line basis over 40 years.
The Company periodically evaluates whether events and circumstances
have occurred which would indicate that goodwill is not recoverable.
Accumulated amortization of goodwill was $2,233,000 and $831,000 at
April 30, 1998 and 1997, respectively. Amortization expense for
1998, 1997, and 1996 was $1,434,000, $253,000, and $101,000,
respectively.
PATENTS, TRADEMARKS, AND OTHER PURCHASED PRODUCT RIGHTS
The cost of acquired patents, trademarks, and other purchased product
rights are capitalized and amortized using the straight-line method
over various periods not exceeding 20 years. Total accumulated
amortization of these assets at April 30, 1998 and 1997 was $364,000
and $315,000, respectively. Amortization expense for 1998, 1997, and
1996 was $271,000, $64,000, and $73,000, respectively.
ACCOUNTS PAYABLE
Accounts Payable includes checks written but not yet presented for
payment at April 30, 1998 and 1997 of $6,409,000 and $1,176,000,
respectively.
ACCRUED LIABILITIES AND OTHER
Accrued liabilities and other consisted of the following at April 30,
1998 and 1997 (in thousands):
1998 1997
---------- ----------
Accrued wages, commissions, bonuses,
and benefits $ 7,607 $ 4,153
Accrued income taxes 828 3,159
Other 9,801 13,033
--------- ---------
$ 18,236 $ 20,345
========= =========
PRODUCT WARRANTY
The Company provides a one-year limited product and service warranty
on certain of its products. The Company provides for the estimated
cost of this warranty at the time of sale. Warranty expense for
1998, 1997, and 1996 was $1,035,000, $1,057,000, and $618,000,
respectively.
CREDIT RISK
Financial instruments that potentially subject the Company to
significant concentrations of credit risk consist principally of cash
investments and trade accounts receivable. The Company places its
cash investments with high-quality financial institutions and limits
the amount of credit exposure to any one institution. The Company's
F-8<PAGE>
trade receivables are primarily from independent distributors of
towing and recovery equipment, and such receivables are generally not
collateralized. The Company monitors its exposure for credit losses
and maintains allowances for anticipated losses.
REVENUE RECOGNITION
Revenue is recorded by the Company when equipment is shipped to
independent distributors or other customers. Revenue from towing
services is recognized when services are performed.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued SFAS
No. 130, "Reporting Comprehensive Income" and SFAS No. 131,
"Disclosures about Segments of an Enterprise and Related
Information". The Company will adopt the provisions for both
statements during fiscal 1999. Management believes adoption of
SFAS No. 130 and SFAS No. 131 will not have a significant impact
on the consolidated financial statements.
3. BUSINESS COMBINATIONS
All businesses acquired through April 30, 1998 which were accounted
for under the purchase method of accounting are included in the
accompanying consolidated financial statements from the dates of
acquisition. Any excess of the aggregate purchase price over the
estimated fair value of net assets acquired has been recognized as a
component of goodwill in the accompanying consolidated financial
statements. All significant businesses acquired through April 30,
1998 which were accounted for under the pooling-of-interests method
of accounting have been included retroactively in the accompanying
consolidated financial statements as if the companies had operated as
one entity since inception.
During fiscal 1997, the Company purchased all of the outstanding
capital stock of three distributors of towing and recovery equipment
for an aggregate purchase price of $4,073,000 which consisted of
318,157 shares of common stock. The Company also purchased all of
the outstanding common stock of 13 towing service companies for an
aggregate purchase price of $29,239,000, which consisted of
$7,479,000 in cash and $21,760,000 (1,639,491 shares) of common
stock. These acquisitions have been accounted for under the purchase
method. The excess of the aggregate purchase price over the
estimated fair value of net assets acquired was approximately
$32,062,000.
Also, during fiscal 1997, the Company acquired all of the outstanding
capital stock of Vulcan International, Inc., a manufacturer of towing
and recovery equipment, and an additional three distributors of towing
and recovery equipment for an aggregate purchase price of $13,085,000,
which consisted of 1,132,513 shares of common stock. The Company also
purchased all of the outstanding common stock of 16 towing service
companies for an aggregate purchase price of $28,053,000 which consisted
of $250,000 in cash and $27,803,000 (2,217,680 shares) of common
stock. These acquisitions were accounted for under the
pooling-of-interests method.
During fiscal 1998, the Company purchased all of the outstanding
capital stock of Chevron, Inc., a manufacturer of towing and
recovery equipment, and three distributors of towing and recovery
equipment for an aggregate purchase price of $11,525,000, which
consisted of $10,818,000 in cash and $707,000 (44,113 shares) of
common stock. The Company also purchased 38 towing service companies
for an aggregate purchase price of $45,065,000 which consisted of
F-9<PAGE>
$14,468,000 in cash and $30,597,000 (2,798,217 shares) of common
stock. These acquisitions have been accounted for using the purchase
method of accounting. The accompanying consolidated financial
statements reflect the preliminary allocation of purchase price as
the purchase price has not been finalized for all transactions. The
excess of the aggregate purchase price over the estimated fair value
of net assets acquired was approximately $47,737,000.
Also, during fiscal 1998, the Company purchased all of the
outstanding capital stock of an additional distributor of towing and
recovery equipment for a purchase price of $2,190,000, which
consisted of 151,046 shares of common stock. The Company also
purchased all of the outstanding common stock of nine towing service
companies for an aggregate purchase price of $8,398,000, which
consisted of 716,184 shares of common stock. These acquisitions were
accounted for using the pooling-of-interests method.
The following unaudited pro forma summary combines the results of
operations of all 1998 purchase combinations, the immaterial
pooling-of-interests combinations, and the Company as if these
combinations had occurred at the beginning of fiscal 1997 after
giving effect to certain adjustments, including amortization of
intangible assets and related income tax effects. The pro forma
summary does not necessarily reflect the results of operations as
they would have been if the Company and these acquisitions had
constituted a single entity during these periods (in thousands,
except share data).
1998 1997
---------------------- --------------------
AS PRO As Pro
REPORTED FORMA Reported Forma
---------- --------- ---------- ---------
Net sales $ 397,213 $ 451,407 $ 292,394 $ 406,194
========= ========= ========= =========
Net income $ 12,665 $ 14,288 $ 14,521 $ 16,099
========= ========= ========= =========
Diluted net income per share $ 0.27 $ 0.31 $ 0.35 $ 0.39
========= ========= ========= =========
Subsequent to April 30, 1998, the Company acquired an additional 13
towing service companies issuing in the aggregate approximately
256,000 shares of common stock and paying approximately $7,113,000 in
cash. Also, the Company has executed letters of intent to acquire 21
additional towing service companies.
F-10
<PAGE>
4. LONG-TERM OBLIGATIONS AND LINES OF CREDIT
LONG-TERM OBLIGATIONS
Long-term obligations consisted of the following at April 30, 1998
and 1997 (in thousands):
1998 1997
--------- ---------
Mortgage notes payable, weighted average
interest rate at 5.80%, payable in
monthly installments, maturing 2003 to 2011 $ 3,508 $ 2,344
Equipment notes payable, weighted average
interest rate at 7.44%, payable in
monthly installments, maturing 1999 to 2005 10,801 12,015
Outstanding borrowings under line of credit 85,000 0
Other notes payable 1,369 1,402
--------- ---------
100,678 15,761
Less current portion (4,900) (4,479)
--------- ---------
$ 95,778 $ 11,282
========= =========
At April 30, 1998, future maturities of long-term obligations
(excluding future cash outflows for interest) are as follows
(in thousands):
1999 $ 4,900
2000 3,411
2001 87,308
2002 1,468
2003 1,281
Thereafter 2,310
Certain equipment and manufacturing facilities are pledged as
collateral under the mortgage and equipment notes payable.
LINE OF CREDIT
At April 30, 1998, the Company had an unsecured revolving credit
facility of $150,000,000 (the "Credit Facility") for working capital
and other general corporate purposes. Borrowings under the Credit
Facility bear interest at a rate equal to the London Interbank
Offered Rate, or the prime rate plus a margin ranging from 0.625%
to 1.5% based on a specified ratio of funded indebtedness to earnings
(6.41% at April 30, 1998) or the prime rate, as elected by the Company.
The weighted average interest rate for borrowings outstanding under the
Credit Facility during 1998 was approximately 6.43%. Interest is payable
monthly. The Credit Facility is due on January 30, 2001 and is renewable
on an annual basis thereafter.
F-11
<PAGE>
The Credit Facility imposes restrictions on the Company with respect
to the maintenance of certain financial ratios, the incurrence of
indebtedness, the sale of assets, capital expenditures and mergers
and acquisitions.
On May 1, 1998, the Company entered into an interest rate swap
agreement covering the notional amount of $50 million of the variable
rate debt to fix the interest rate at 5.68 % plus the applicable
margin. The agreement expires at the end of three years unless
cancelled by the bank at the end of two years.
5. STOCK-BASED COMPENSATION PLANS
The Company accounts for its stock-based compensation plans under
Accounting Principles Board Opinion No. 25, "Accounting for Stock
Issued to Employees". Effective in 1997, the Company adopted the
disclosure option of SFAS No. 123, "Accounting for Stock-Based
Compensation". Accordingly, no compensation cost has been recognized
for stock option grants since the options have exercise prices equal
to the market value of the common stock at the date of grant.
In accordance with the Company's stock-based compensation plans, the
Company may grant incentive stock options as well as non-qualified
and other stock-related incentives to officers, employees and
nonemployee directors of the Company. Options vest ratably over a
four-year period beginning on the grant date and expire ten years
from the date of grant. Shares available for granting options at
April 30, 1998 and 1997 were 1.5 million and 2.3 million, respectively.
For SFAS No. 123 purposes, the fair value of each option grant has
been estimated as of the date of grant using the Black-Scholes
option-pricing model with the following weighted average assumptions
for grants in 1998, 1997 and 1996, respectively: expected dividend
yield of 0%; expected volatility of 51%, 42% and 42%; risk-free
interest rate of 5.99%, 6.33% and 6.08%; and expected lives of 5.5
years. Using these assumptions, the fair value of options granted in
1998, 1997, and 1996 is approximately $5,058,000, $7,457,000 and
$1,639,000, respectively, which would be amortized as compensation
expense over the vesting period of the options.
Had compensation cost for 1998, 1997 and 1996 stock option grants
been determined based on the fair value at the grant dates consistent
with the method prescribed by SFAS No. 123, the Company's net income
and net income per share would have been adjusted to the pro forma
amounts indicated below:
1998 1997 1996
--------- ---------- ----------
Net income (in thousands):
As reported $12,665 $14,521 $ 9,027
Pro forma 10,447 13,624 8,864
Basic net income per share:
As reported $0.28 $0.37 $0.27
Pro forma 0.24 0.34 0.27
Diluted net income per share:
As reported $0.27 $0.35 $0.26
Pro forma 0.23 0.33 0.26
F-12<PAGE>
The pro forma effect on net income in this disclosure is not
representative of the pro forma effect on net income in future years
because its does not take into consideration pro forma compensation
expense related to grants made prior to 1996.
F-13<PAGE>
A summary of the activity of stock options during 1998, 1997, and 1996 is
presented below (shares in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
----------------------- ----------------------- -----------------------
Weighted Weighted Weighted
Shares Average Shares Average Shares Average
Under Exercise Under Exercise Under Exercise
Option Price Option Price Option Price
--------- ---------- --------- ---------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C>
OUTSTANDING AT BEGINNING OF YEAR 3,768 $ 6.39 2,776 $ 2.98 1,915 $ 2.36
Granted 818 13.46 1,529 11.28 898 4.29
Exercised (300) 3.24 (515) 2.55 (18) 2.33
Forfeited (140) 7.62 (22) 6.67 (19) 2.77
------ ------- ------ ------- ------ -------
OUTSTANDING AT END OF YEAR 4,146 $ 7.97 3,768 $ 6.39 2,776 $ 2.98
====== ======= ====== ======= ====== =======
Options exercisable at year end 1,643 $ 5.18 811 $ 3.25 509 $ 2.38
====== ======= ====== ======= ====== =======
Weighted average fair value of
options granted $ 6.84 $ 5.54 $ 2.06
======= ======= =======
A summary of options outstanding under the Company's stock-based compensation plans at April 30,
1998 is presented below (shares in thousands):
</TABLE>
<TABLE>
<CAPTION>
WEIGHTED AVERAGE
EXERCISE SHARES UNDER WEIGHTED AVERAGE SHARES EXERCISE PRICE OF
PRICE RANGE OPTION REMAINING LIFE EXERCISABLE SHARES EXERCISABLE
-------------- ------------ ---------------- ------------- ---------------------
<C> <C> <C> <C> <C> <C>
$ 2.33 $ 3.37 1,156 6.3 816 $ 2.38
3.78 5.48 673 7.3 369 4.11
5.75 7.69 130 8.5 46 6.74
8.79 12.88 1,387 8.5 356 10.93
13.38 18.00 800 9.1 56 15.28
------- ----- ------ -------
Total 4,146 7.8 1,643 $ 5.18
======= ===== ====== ========
F-14<PAGE>
6. LEASE COMMITMENTS
The Company has entered into various operating leases for buildings,
office equipment and trucks. Rental expense under these leases was
$7,952,000, $455,000 and $892,000, for 1998, 1997, and 1996,
respectively.
At April 30, 1998, future minimum lease payments under noncancellable
operating leases for the next five fiscal years are as follows (in
thousands):
1999 $6,023
2000 5,343
2001 4,157
2002 3,156
2003 1,593
7. LITIGATION
The Company is party to certain proceedings incidental to its
business. The ultimate disposition of such matters cannot be
determined presently but will not, in the opinion of management,
based in part on the advice of legal counsel, have a material adverse
effect on the Company's financial position or results of operations.
In January 1998, the Company received a letter from the Department of
Justice Antitrust Division stating that it was conducting a civil
investigation covering "competition in the tow truck industry." The
letter asked that the Company preserve its records related to the tow
truck industry, particularly documents related to sales and prices of
products and parts, acquisition of other companies in the industry,
distributor relations, patent matters, competition in the industry
generally, and activities of other companies in the industry. In
March 1998, the Company received a Civil Investigative Demand issued
by the Department of Justice as part of its continuing investigation
of whether there are, have been or may be violations of the federal
antitrust statutes in the tow truck industry. Under this Civil
Investigative Demand, the Company is required to produce for
government officials information and documents to assist in their
investigation.
During September, October and November, 1997, five lawsuits were
filed by certain persons who seek to represent a class of
shareholders who purchased shares of the Company's common stock
during the period from either October 15 or November 6, 1996 to
September 11, 1997. Four of the suits were filed in the United
States District Court for the Northern District of Georgia. The
remaining suit was filed in the Chancery Court of Hamilton County,
Tennessee. In general, the individual plaintiffs in all of the cases
allege that they were induced to purchase the Company's common stock
on the basis of allegedly actionable misrepresentations or omissions
about the Company and its business and, as a result were thereby
damaged. Four of the complaints assert claims under Sections 10(b)
and 20 of the Securities Act of 1934. The complaints name as the
defendants the Company and various of its present and former
directors and officers. The plaintiffs in the four actions which
involved claims in Federal Court under the Securities Exchange Act of
1934 have consolidated those actions. The Company has filed a motion
to dismiss in the consolidated case and is awaiting action by the
court on the motion. The Company filed a motion to dismiss in the
Tennessee suit which was granted on May 20, 1998. The Company denies
liability and continues to vigorously defend these actions.
In January 1996, the Company was awarded a judgment in a patent
infringement suit in the United States District Court for the
Northern District of Iowa at Sioux City, Iowa in which the jury found
F-15<PAGE>
the defendant manufacturer and distributor of towing equipment
willfully infringed both the Company's underlift parallel linkage and
L-arm patents and that the common owner of the manufacturer and
distributor induced the infringement. The judgment was paid to the
Company in August 1996 in the amount of approximately $1.8 million,
which included enhanced damages for willfulness and pre-judgment and
post-judgment interest and a broad permanent injunction against
future infringement by the defendants. Defendants were not granted a
license to use the Company's L-arm technology. With this payment,
both the Company and the defendants withdrew their appeals, and the
judgment, therefore, became a final judgment.
8. INCOME TAXES
Deferred tax assets and liabilities are determined based on the
differences between the financial and tax bases of existing assets
and liabilities using the currently enacted tax rates in effect for
the year in which the differences are expected to reverse.
The provision for income taxes consisted of the following for 1998,
1997, and 1996 (in thousands):
1998 1997 1996
--------- --------- ---------
Current:
Federal $6,300 $7,973 $4,041
State 720 938 570
Foreign 239 228 124
------ ------ ------
7,259 9,139 4,735
------ ------ ------
Deferred:
Federal 713 (612) 388
State 81 (72) (11)
Foreign 133 (19) (4)
------ ------ ------
927 (703) 373
------ ------ ------
$8,186 $8,436 $5,108
====== ====== ======
The principal differences between the federal statutory tax rate and the
consolidated effective tax rate for 1998, 1997, and 1996 were as
follows:
1998 1997 1996
-------- --------- ----------
Federal statutory tax rate 35.0% 34.0% 34.0%
State taxes, net of federal tax benefit 4.0 4.0 4.0
Effect of S corporations acquired (2.1) (3.1) (1.7)
Other 2.4 1.8 (0.2)
----- ----- -----
Effective tax rate 39.3% 36.7% 36.1%
===== ===== =====
F-16<PAGE>
Deferred income tax assets and liabilities for 1998 and 1997 reflect the
impact of temporary differences between the amounts of assets and
liabilities for financial reporting and income tax reporting
purposes. Temporary differences and carryforwards which give rise to
deferred tax assets and liabilities at April 30, 1998 and 1997 are as
follows (in thousands):
1998 1997
-------- --------
Deferred tax assets:
Allowance for doubtful accounts $ 601 $ 621
Accruals and reserves 3,523 4,105
Inventory and related reserves 253 185
Other 38 12
------- -------
Total deferred tax assets 4,415 4,923
------- -------
Deferred tax liabilities:
Property, plant, and equipment 2,680 2,060
Other 215 182
------- -------
Total deferred tax liabilities 2,895 2,242
------- -------
Net deferred tax asset $1,520 $2,681
======= =======
In management's opinion, the net deferred tax asset will be realized
through the recognition of taxable income in future periods.
9. SALE OF FINANCE RECEIVABLES
In April 1997, the Company entered into an agreement to sell certain
finance receivables to a third party leasing company for $24,596,000.
An additional $3,861,000 was sold in October 1997. The resulting
gain on these sales did not have a material impact on the Company's
consolidated financial statements.
The agreement contingently obligates the Company to indemnify the
leasing company for any losses it incurs up to specified amounts in
the event the lessee defaults. The Company believes that any
equipment returned as a result of lessee defaults could be sold to
third parties at amounts approximating the debt obligations under the
lease. The Company's aggregate potential liability under the
agreement as of April 30, 1998 and 1997 was $5,393,000 and
$6,280,000, respectively. Management believes its reserves for such
recourse provisions are adequate to cover its exposures under the
agreement.
10. PREFERRED STOCK
The Company has authorized 5,000,000 shares of undesignated preferred
stock which can be issued in one or more series. The terms, price,
and conditions of the preferred shares will be set by the board of
directors. No shares have been issued.
11. EMPLOYEE BENEFIT PLAN
During 1996, the Company established a contributory retirement plan
(the "401(k) Plan") for all full-time employees with at least 90 days
of service. The 401(k) Plan is designed to provide tax-deferred
income to the Company's employees in accordance with the provisions
of Section 401(k) of the Internal Revenue Code.
F-17<PAGE>
The 401(k) Plan provides that each participant may contribute up to
15% of his or her salary. The Company matches 33.33% of the first 3%
of participant contributions. Matching contributions vest over a
period of five years.
All funds contributed by the participants are immediately vested.
Under the terms of the 401(k) Plan, the Company may also make
discretionary profit-sharing contributions. Profit-sharing
contributions are allocated among participants based on their annual
compensation. Each participant has the right to direct the
investment of his or her funds among certain named investment
options.
Upon death, disability, retirement, or the termination of employment,
participants may elect to receive periodic or lump-sum payments.
Additionally, amounts may be withdrawn in cases of demonstrated
hardship. Company contributions to the 401(k) Plan were not
significant in 1998, 1997 and 1996.
12. STOCK REPURCHASE PLAN
The Company's board of directors approved a share repurchase plan
during fiscal 1998 under which the Company may repurchase up to
2,000,000 shares of its common stock from time to time until September 30,
1998. It is expected that such repurchased shares would be issued
as consideration in business acquisitions currently being negotiated
pursuant to the Company's ongoing acquisition strategy. All shares
purchased under the plan during fiscal 1998 (547,900 shares at a cost
of $4.2 million) were reissued as consideration for towing services
companies acquired prior to April 30, 1998.
F-18<PAGE>
13. RESTRUCTURING COSTS
In September 1997, the Company announced its intention to further
consolidate its domestic wrecker production at its Ooltewah,
Tennessee facility. The consolidation entailed the closure of the
Olive Branch, Mississippi facility with the relocation of wrecker
production to Ooltewah. All equipment relocation and production
consolidation was completed by April 1998.
In the second quarter of fiscal 1998, the Company recorded a pretax
restructuring charge of $4.1 million to provide for the plant closing
and consolidation of manufacturing operations. Of the $4.1 million
restructuring charge, approximately $0.5 million related to workforce
reductions of approximately 150 employees and associated costs.
Also, $1.9 million of asset valuation losses relating to plant and
machinery and equipment writedowns is included in the restructuring
charge. The balance of the charge covers lease terminations,
property holding costs, and other shutdown related costs. At April
30, 1998, approximately $2.9 million had been charged against the
related reserves.
The carrying value of the Olive Branch, Mississippi manufacturing
facility is $1.5 million and is classified as "Other Assets" in the
accompanying consolidated balance sheet.
F-19<PAGE>
14. SEGMENT INFORMATION
The Company operates in two principal industry segments: (i)
manufacturing and distribution and (ii) towing services (in
thousands).
Manufacturing
And Towing
Distribution Services Consolidated
------------- -------- ------------
1998
Revenues $ 282,241 $ 114,972 $ 397,213
Operating income 19,073 5,167 24,240
Interest expense, net 2,756 633 3,389
Income before income
taxes 16,317 4,534 20,851
Depreciation and
amortization 3,495 6,752 10,247
Capital expenditures 5,851 20,664 26,515
Identifiable assets 182,734 146,996 329,730
1997
Revenues 254,977 37,417 292,394
Operating income 21,200 2,377 23,577
Interest expense
(income), net (271) 891 620
Income before income taxes 21,471 1,486 22,957
Depreciation and
amortization 2,983 2,799 5,782
Capital expenditures 7,996 3,077 11,073
Identifiable assets 149,740 65,557 215,297
1996
Revenues 163,810 16,653 180,463
Operating income 12,903 1,441 14,344
Interest expense, net 31 178 209
Income before income 12,747 1,388 14,135
taxes
Depreciation and
amortization 1,259 1,503 2,762
Capital expenditures 7,246 3,161 10,407
Identifiable assets 114,054 9,924 123,978
F-20<PAGE>
15. QUARTERLY FINANCIAL INFORMATION
The following is a summary of the unaudited quarterly financial
information for the years ended April 30, 1998 and 1997 (in
thousands, except per share data):
</TABLE>
<TABLE>
<CAPTION>
Basic Diluted
Net Net
Income Income
Net Operating Net Per Per
Sales Income Income Share Share
--------- --------- --------- -------- ------
<S> <C> <C> <C> <C> <C>
Year ended April 30, 1998:
First quarter $ 85,353 $ 7,924 $ 4,798 $ 0.11 $ 0.10
Second quarter 94,727 4,117 2,277 0.05 0.05
Third quarter 105,221 5,081 2,391 0.05 0.05
Fourth quarter 111,912 7,118 3,199 0.07 0.07
--------- -------- --------- ------- ------
Total $ 397,213 $ 24,240 $ 12,665 $ 0.28 $ 0.27
========= ======== ========= ======= ======
Year ended April 30, 1997:
First quarter $ 60,963 $ 4,640 $ 2,857 $ 0.08 $ 0.08
Second quarter 74,061 5,538 3,516 0.09 0.08
Third quarter 80,261 6,175 3,852 0.10 0.09
Fourth quarter 77,109 7,224 4,296 0.10 0.10
--------- -------- --------- ------- ------
Total $ 292,394 $ 23,577 $ 14,521 $ 0.37 $ 0.35
========= ======== ========= ======= ======
</TABLE>
F-21<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
AS TO SCHEDULE II -
VALUATION AND QUALIFYING ACCOUNTS
To Miller Industries, Inc.
We have audited in accordance with generally accepted
auditing standards, the consolidated financial statements of
Miller Industries, Inc. and subsidiaries included in this Form 10-
K and have issued our report thereon dated July 15, 1998. Our
audit was made for the purpose of forming an opinion on the basic
financial statements taken as a whole. The schedule listed in
the index is the responsibility of the Company's management and
is presented for purposes of complying with the Securities and
Exchange Commission's rules and is not part of the basic
financial statements. This schedule has been subjected to the
auditing procedures applied in the audit of the basic financial
statements and, in our opinion, fairly states in all material
respects the financial data required to be set forth therein in
relation to the basic financial statements taken as a whole.
ARTHUR ANDERSEN LLP
Chattanooga, Tennessee
July 15, 1998
S-1
<PAGE>
<TABLE>
<CAPTION>
MILLER INDUSTRIES, INC. AND SUBSIDIARIES
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
Balance at Accounts Balance at
Beginning Charged to Charged to Written End of
of Period Expenses Other Off Period
------------ ---------- ---------- --------- ----------
(In Thousands)
<S> <C> <C> <C> <C> <C>
Year ended April 30, 1996:
Deduction from asset accounts:
Allowance for doubtful accounts $ 769 160 413(a) (77) $ 1,265
Year ended April 30, 1997:
Deduction from asset accounts:
Allowance for doubtful accounts $ 1,265 174 474(a) (139) $ 1,774
Year ended April 30, 1998:
Deduction from asset accounts:
Allowance for doubtful accounts $ 1,774 214 1,082(a) (953) $ 2,117
</TABLE>
(a) The other addition to the allowance for doubtful accounts results
from the acquisitions in fiscal 1996, 1997 and 1998 which were
accounted for under the purchase method of accounting.
S-2
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused this
Report to be signed on its behalf by the undersigned, thereunto duly
authorized, on the 24th day of July , 1998.
MILLER INDUSTRIES, INC.
By: /s/ Jeffrey I. Badgley
Jeffrey I. Badgley, President,
Chief Executive Officer and Director
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Jeffrey I. Badgley and Adam L.
Dunayer, and either of them, as attorneys-in-fact, with power of
substitution, for him in any and all capacities, to sign any amendments
to this Report on Form 10-K, and to file the same, with exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorneys-in-fact may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934,
this Report has been signed below by the following persons on behalf of
the Registrant in the capacities indicated on the 24th day of July,
1998.
SIGNATURE TITLE
--------- -----
/s/ William G. Miller Chairman of the Board of Directors
- -------------------------------------
WILLIAM G. MILLER
/s/ Jeffrey I. Badgley President, Chief Executive Officer
- ------------------------------------- and Director
JEFFREY I. BADGLEY
/s/ Adam L. Dunayer Vice President, Treasurer and
- ------------------------------------- Chief Financial Officer
ADAM L. DUNAYER (Principal Financial and
Accounting Officer)
/s/ A. Russell Chandler, III Director
- -------------------------------------
A. RUSSELL CHANDLER, III
/s/ Paul E. Drack Director
- -------------------------------------
PAUL E. DRACK
/s/ Stephen A. Furbacher Director
- -------------------------------------
STEPHEN A. FURBACHER
/s/ Richard H. Roberts Director
- -------------------------------------
RICHARD H. ROBERTS
II-1
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
DESCRIPTION
-------------------------------
<S> <C>
3.1 Charter of the Registrant (composite conformed copy)
10.35 Credit Agreement Among NationsBank of Tennessee, N.A., the Registrant and
certain subsidiaries of Registrant dated January 30, 1998.
10.36 Negative Pledge Agreement Among NationsBank of Tennessee, N.A., the
Registrant and certain subsidiaries of Registrant dated January 30, 1998.
10.37 Guaranty Agreement Among NationsBank of Tennessee, N.A. and certain
subsidiaries of Registrant dated January 30, 1998.
10.38 Stock Pledge Agreement Between NationsBank of Tennessee, N.A. and
the Registrant dated January 30, 1998.
10.39 Stock Pledge Agreement Between NationsBank of Tennessee, N.A. and
the certain subsidiaries of the Registrant dated January 30, 1998.
10.40 Revolving Note Among NationsBank of Tennessee, N.A., the Registrant and
certain subsidiaries of Registrant dated January 30, 1998.
10.41 Revolving Note Among Bank of America, FSB, the Registrant and certain
subsidiaries of Registrant dated January 30, 1998.
10.42 Revolving Note Among Wachovia Bank, N.A., the Registrant and certain
subsidiaries of Registrant dated January 30, 1998.
10.43 Revolving Note Among First American National Bank, the Registrant and
certain subsidiaries of Registrant dated January 30, 1998.
10.44 Swing Line Note Among NationsBank of Tennessee, N.A., the Registrant and
certain subsidiaries of Registrant dated January 30, 1998.
10.45 LC Account Agreement Among NationsBank of Tennessee, N.A., the
Registrant and certain subsidiaries of Registrant dated January 30, 1998.
10.46 Amendment No. 1 to the Credit Agreement Among NationsBank of
Tennessee, N.A., the Registrant and certain subsidiaries of Registrant
dated January 31, 1998.
21 Subsidiaries of the Registrant
23 Consent of Arthur Andersen LLP
24 Power of Attorney (see signature page)
27 Financial Data Schedule (for SEC use only)
</TABLE>
CHARTER
OF
MILLER INDUSTRIES, INC.
The undersigned person, having capacity to contract and
acting as the incorporator of a corporation under the Tennessee
Business Corporation Act (the "Act"), adopts the following
Charter for the corporation named above (the "Corporation"):
1 The name of the Corporation is:
Miller Industries, Inc.
2. (a) The street address and zip code of the initial
registered office of the Corporation is:
5803 Hilltop Drive
Ooltewah, Tennessee 37363
(b) The initial registered office of the Corporation
is located in Hamilton County, Tennessee.
(c) The initial registered agent in the registered
office is:
Frank Madonia
3. The name, address, and zip code of the incorporator is;
Richard H. Roberts, Esq.
Baker, Worthington, Crossley,
Stansberry & Woolf
1700 Nashville City Center
511 Union Street
Nashville, Tennessee 37219
4. The street address and zip code of the principal office
if the Corporation in the State of Tennessee is:
8503 Hilltop Drive
Ooltewah, Tennessee 37363
5. The Corporation is for profit.
-1-<PAGE>
6. The powers of the incorporator are to terminate upon
filing of the Charter and the name and address of the individual
who is to serve as the initial director of the Corporation is as
follows:
William G. Miller
8503 Hilltop Drive
Ooltewah, Tennessee 37363
7. The purposes for which the Corporation is organized are
to do any and all things and to exercise any and all powers,
rights, and privileges which a corporation may now or hereafter
be organized to do, or to exercise, under the Act, as such is
amended, from time to time.
8. The maximum number of shares of capital stock which the
Corporation shall have the authority to issue is twenty-five
million (25,000,000) shares, of which twenty million (20,000,000)
shares are designated Common Stock with a par value of one cent
($.01) per share, and five million (5,000,000) shares are
designated Preferred Stock with a par value of one cent ($.01)
per share.
The designations, preferences, privileges and powers and
relative, participating, optional or other special rights and
qualifications, limitations or restrictions of the above classes
of capital stock shall be as follows:
(a) Preferred Stock.
---------------
(1) Shares of Preferred Stock may be divided into
and issued in one or more series at such time or times and for
such consideration as the Board of Directors may determine. All
shares of any one series shall be of equal rank and identical in
all respects.
(2) Authority is hereby expressly granted to the
Board of Directors to fix and determine from time to time, by
resolution or resolutions providing for the establishment and/or
issuance of any series of Preferred Stock, the designation of
such series and the powers, preferences, and rights of the shares
of such series, and the qualifications, limitations or
restrictions thereof, as the Board of Directors may deem
advisable and to the fullest extent now or hereafter permitted by
the laws of the State of Tennessee. The resolution or
resolutions providing for the establishment and/or issuance of
such series of Preferred Stock shall set forth: (i) the
designation and number of shares comprising each series; (ii) the
rate of dividends, if any, and whether such dividends shall be
noncumulative, cumulative to the extent earned, or cumulative
and, if cumulative, from which date or dates; (iii) whether the
shares shall be redeemable and, if so, the terms and conditions
of such redemption; (iv) whether there shall be a sinking fund
for the redemption; (v) the rights to which the holders of the
shares shall be entitled in the event of voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, and
-2-<PAGE>
the priority of payment of shares in any such event; (vi) whether
the shares shall be convertible into or exchangeable for shares
of any other class or any other series and the terms thereof; and
(vii) all other preferences, privileges and powers and relative,
participating, optional or other special rights and
qualifications, limitations or restrictions of such series.
(3) The shares of Preferred Stock shall have no
voting power or voting rights with respect to any matter
whatsoever, except as may be otherwise required by law or may be
provided in the resolution or resolutions of the Board of
Directors creating the series of which such shares are a part.
(4) Authority is hereby expressly granted to the
Board of Directors to make any change in the designations, terms,
limitations or relative rights or preferences of any series of
Preferred Stock in the same manner as provided for in the
issuance of Preferred Stock, so long as no shares of such series
are outstanding at such time.
(b) Common Stock.
------------
(1) After the requirements with respect to
preferential dividends, if any, on any series of Preferred Stock
(fixed pursuant to resolutions as provided in Article 8(a) above)
shall have been met, and after the Corporation shall have
complied with all requirements, if any, with respect to the
setting aside of sums in a sinking fund for the purchase or
redemption of shares of any series of Preferred Stock (fixed
pursuant to resolutions as provided in Article 8(a) above), then,
and not otherwise, the holders of Common Stock shall receive, to
the extent permitted by law and to the extent the Board of
Directors shall determine, such dividends as may be declared from
time to time by the Board of Directors.
(2) After distribution in full of the
preferential amount, if any (fixed pursuant to resolutions as
provided in Article 8(a) above), to be distributed to the holders
of any series of Preferred Stock in the event of the voluntary or
involuntary liquidation, dissolution or winding-up of the
Corporation, the holders of the Common Stock shall be entitled to
receive such of the remaining assets of the Corporation of
whatever kind available for distribution to the extent the Board
of Directors shall determine.
(3) Except as may be otherwise required by law or
by the charter of the Corporation, as amended, each holder of
Common Stock shall have one vote in respect of each share of such
stock held by him on all matters voted upon by the shareholders.
(c) Preemptive Rights. No holder of shares of the
-----------------
Corporation of any class, now or hereafter authorized, shall have
any preferential or preemptive right to subscribe for, purchase
or receive any shares of stock of the Corporation of any class,
now or hereafter authorized, or any options or warrants for such
shares, or any rights to subscribe to or purchase such shares, or
any securities convertible into or exchangeable for such shares,
which may at any time or from time to time be issued, sold or
offered for sale by the Corporation.
-3-<PAGE>
9. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation
shall be managed under the direction of, a Board of Directors.
The number of directors of the Corporation shall be not less than
three nor more than seven, the exact number to be fixed by, or in
the manner provided in, the Bylaws. The Board of Directors shall
be divided into three classes serving staggered three-year terms,
as nearly equal in number as possible, respectively designated
"Class I", "Class II" and "Class III" directors. The initial
Class I, "Class II" and "Class III" directors shall be elected by
the shareholders of the Corporation. The initial Class I
directors shall hold office until the 1995 annual meeting of
shareholders, the initial Class II directors all hold office
until the 1996 annual meeting of shareholders and the initial
Class III directors shall hold office until the 1997 annual
meeting of shareholders. In each case, directors shall serve
until their respective successors shall have been elected and
qualified, subject to their earlier death, resignation, or
removal.
At each annual meeting of shareholders commencing with the
1995 annual meeting of shareholders, directors to replace the
Class whose term of office expires at such meeting shall be
elected to hold office for three year terms, and in each case
until their respective successors shall have been elected and
qualified, subject to their earlier death, resignation or
removal.
If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as
possible, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. Any
vacancy on the Board of Directors that results from an increase
in the number of directors shall be filled only by a majority of
the Board of Directors then in office, and any other vacancy
occurring in the Board of Directors shall be filled only by a
majority of the directors then in office, although less than a
quorum, or by a sole remaining director.
Any director may be removed from office but only for cause
and only by () the affirmative vote of the holders of a majority
of the voting power of the shares entitled to vote for the
election of directors, considered for this purpose as one class,
unless a vote of a specific voting group is otherwise required by
law, or () the affirmative vote of a majority of the entire Board
of Directors then in office.
Notwithstanding the foregoing, whenever the holders of any
one or more classes or series of preferred stock issued by the
Corporation shall have the right, voting separately, by class or
series, to elect directors at an annual or special meeting of
shareholders, the election, term of office, filling of vacancies,
and other features of such directorships shall be governed by the
terms of this Charter applicable thereto, and such directors so
elected shall not be divided into classes pursuant to this
-4-<PAGE>
Article 9 unless expressly provided by such terms. In the event
of a vacancy among the directors so elected by the holders of
preferred stock, the remaining directors elected by the holders
of preferred stock may fill the vacancy.
Notwithstanding any other provisions of this Charter, the
affirmative vote of holders of 66 2/3% of the voting power of the
shares entitled to vote at an election of directors shall be
required to amend, alter, change, or repeal, or to adopt any
provision as part of this Charter or as part of the Corporation's
Bylaws inconsistent with the purpose and intent of, this
Article 9.
10. The Corporation shall have and exercise all powers
necessary or convenient to effect any or all of the purposes for
which the Corporation is organized and shall likewise have the
powers provided by the Act, or as the same shall hereafter be
amended.
11. (a) To the fullest extent permitted by the laws of the
State of Tennessee, including without limitation, the Act, as it
exists on the date hereof or as it may hereafter be amended, no
director of the Corporation shall be personally liable for
monetary damages to the Corporation or its shareholders for any
breach of fiduciary duty as a director. If the laws of the State
of Tennessee, including, without limitation, the Act, are amended
after approval of this Charter to authorize corporate action
further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Act, as so amended. Any repeal or modification of this
Article 11 by the shareholders shall not adversely affect any
right or protection of a director existing at the time of such
repeal or modification or with respect to events occurring prior
to such time.
(b) The Corporation shall have the power to indemnify
any director, officer, employee, agent of the Corporation, or any
other person who is serving at the request of the Corporation in
any such capacity with another corporation, partnership, joint
venture, trust, or other enterprise to the fullest extent
permitted by the law of the State of Tennessee as it exists on
the date hereof or as it may hereafter be amended, and any such
indemnification may continue as to any person who has ceased to
be a director, officer, employee or agent and may inure to the
benefit of the heirs, executors and administrators of such
person.
12. The directors of the Corporation shall have the right
to take any action required or permitted by vote without a
meeting on written consent to the fullest extent permitted by the
Act, or as the same shall hereafter be amended.
13. In taking or not taking any action in response to an
Acquisition Proposal (as defined below), the Board of Directors
of the Corporation may consider the social and economic effects
of consummation of the Acquisition Proposal on the employees,
customers, suppliers, and other constituents of the Corporation
and its subsidiaries and on the communities in which the
Corporation and its subsidiaries operate or are located and the
desirability of maintaining the Corporation's independence from
other entities. For purposes of this Article 13, "Acquisition
-5-<PAGE>
Proposal" means an offer of any person or entity (other than the
Corporation)to (a) make a tender or exchange offer for any equity
security of the Corporation or any other security of the
Corporation convertible into an equity security, (b) merge or
consolidate the Corporation with another person or entity, or
(c) purchase or otherwise acquire all or substantially all of the
properties and assets of the Corporation and its subsidiaries.
14. The Corporation shall hold a special meeting of
shareholders only in the event () of a call of the Board of
Directors of the Corporation or the officers authorized to do so
by the Bylaws of the Corporation, or () the holders of at least
fifteen percent of all the votes entitled to be case on any issue
proposed to be considered at the proposed special meeting sign,
date, and deliver to the Corporation's secretary one or more
written demands for the meeting describing the purpose or
purposes for which it is to be held.
15. The Corporation shall enjoy and be subject to such
benefits, privileges and immunities and such restrictions,
liabilities and obligations as are provided with respect to
corporations for profit generally by the laws of the land and
which are held applicable to corporations for profit organized
under the Act, or as the same shall hereafter be amended.
Dated this _____ day of April, 1994.
______________________________
Richard H. Roberts
Incorporator
-6-
<PAGE>
ARTICLES OF AMENDMENT
OF
MILLER INDUSTRIES, INC.
1.
The name of the corporation is Miller Industries, Inc.
(the "Corporation").
2.
The Charter of the Corporation is amended by striking
the first paragraph of Article 8 of the Charter in its entirety
and inserting in lieu thereof the following:
The maximum number of shares of capital stock
which the Corporation shall have the authority to issue
is One Hundred Five Million (105,000,000) shares, of
which One Hundred Million (100,000,000) shares are
designated Common Stock with a par value of one cent
($.01) per share, and Five Million (5,000,000) shares
are designated Preferred Stock with a par value of one
cent ($.01) per share.
3.
The Charter of the Corporation is further amended by
striking the second sentence of the first paragraph of Article 9
of the Charter in its entirety and inserting in lieu thereof the
following:
The number of directors of the Corporation shall
not be less than three (3) nor more than fifteen (15),
the exact number to be fixed by, or in the manner
provided in, the Bylaws.
4.
Both of the foregoing amendments to the Charter were
duly adopted by the shareholders of the Corporation on August 30,
1996.
IN WITNESS WHEREOF, the Corporation has caused these
Articles of Amendment to be executed by its duly authorized
officer this 5th day of September, 1996.
MILLER INDUSTRIES, INC.
By: /s/ Frank Madonia
Name: Frank Madonia
Title: V.P.
<PAGE>
ARTICLES OF MERGER
OF
SPEED'S ENTERPRISES, INC.
(an Oregon corporation)
AND
MILLER INDUSTRIES, INC.
(a Tennessee corporation)
To the Secretary of State
State of Tennessee
Pursuant to the provisions of the Tennessee Business Corporation
Act, the domestic business corporation and the foreign business
corporation herein named do hereby submit the following articles
of merger.
1. Annexed hereto and made a part hereof is the
Agreement and Plan of Merger (the "Plan of Merger") for merging
Speed's Enterprises, Inc., an Oregon corporation ("Speed's) with
and into Miller Industries, Inc., a Tennessee corporation
("Miller") as adopted at a meeting by the Board of Directors of
Speed's on January 29, 1997 and adopted at a meeting by the Board
of Directors of Miller on January 31, 1997.
2. The shareholders of Miller were not required to
vote on the Plan of Merger.
3. The merger of Speed's with and into Miller is
permitted by the laws of the jurisdiction of organization of
Speed's and has been authorized in compliance with said laws.
4. Miller will continue its existence as the surviving
corporation under its present name pursuant to the provisions of
the Tennessee Business Corporation Act.
Executed on February 27, 1997.
MILLER INDUSTRIES, INC.
By:___________________________
Frank Madonia,
Vice President and Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
<PAGE>
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
SPEED'S ENTERPRISES, INC.
By:___________________________
Name:_________________________
Title:________________________
<PAGE>
AGREEMENT AND PLAN OF MERGER
OF
SPEED'S ENTERPRISES, INC.
WITH AND INTO
MILLER INDUSTRIES, INC.
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is
made and entered into as of the 4th day of February, 1997, by and
among MILLER INDUSTRIES, INC., a Tennessee corporation
("Parent"), SPEED'S ENTERPRISES, INC., an Oregon corporation (the
"Company"), and the Company's shareholders identified on the
signature page below (collectively, the "Shareholders" and
individually a "Shareholder").
W I T N E S S E T H:
WHEREAS, Parent and its subsidiaries are engaged in,
among other things, the manufacture, sale and distribution of
towing and recovery equipment and related services; and the
Company is engaged in the provision of towing and recovery and
related services (collectively, the "Company's Services"); and
WHEREAS, the Shareholders own all of the issued and
outstanding common stock of the Company (the "Shares"); and
WHEREAS, prior to the consummation of the transactions
described herein, the Company intends to distribute certain of
its assets not related to the towing and recovery business to the
Shareholders; and
WHEREAS, subject to the distribution described above,
Parent and the Shareholders deem it advisable and in their
respective best interests to consummate the transactions
described herein; and
WHEREAS, Parent and the Shareholders intend that this
Agreement be approved and adopted by all relevant parties as a
plan of reorganization within the provisions of Section
368(a)(1)(A) of the Internal Revenue Code of 1986, as amended
(the "Code"); and
NOW, THEREFORE, for and in consideration of the
premises, and the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
<PAGE>
1. THE MERGER
1.1. The Merger. At the effective time of the merger
(the "Effective Time"), upon the terms and subject to the
conditions set forth herein, and in accordance with the corporate
laws of the state of incorporation of Parent and the Company (the
"Corporate Laws"), the Company shall be merged with and into
Parent, the separate existence of the Company shall cease, and
Parent shall continue as the surviving corporation under its
present name (the "Merger"). Parent after the Merger is
sometimes hereafter referred to as the "Surviving Corporation."
1.2. Effect of the Merger. At the Effective Time, the
Surviving Corporation shall continue its corporate existence
under the Laws of Tennessee and shall succeed to all rights,
privileges, immunities, franchises and powers, and be subject to
all duties, liabilities, debts and obligations, of the Company in
accordance with the provisions of the Corporate Laws.
2. THE SURVIVING CORPORATION
2.1. Charter. The charter of Parent as in effect
immediately prior to the Effective Time shall be the charter of
the Surviving Corporation until thereafter amended in accordance
with applicable Law and such charter.
2.2. Bylaws. The bylaws of Parent as in effect
immediately prior to the Effective Time shall be the bylaws of
the Surviving Corporation until thereafter amended in accordance
with applicable Law, the charter of such Surviving Corporation
and such bylaws.
2.3. Board of Directors. The directors of Parent
immediately prior to the Effective Time shall be the board of
directors of the Surviving Corporation, each of such persons to
serve until his or her successor, if there is to be one, is duly
elected and qualified.
2.4. Officers. The officers of Parent immediately
prior to the Effective Time shall be the initial officers of the
Surviving Corporation, each of such officers to serve until his
or her successor, if there is to be one, is duly qualified.
3. MERGER CONSIDERATION; CONVERSION
3.1. Company Shares. At the Effective Time, by virtue
of the Merger, and without any action on the part of the
Shareholders, all of the Shares issued and outstanding
immediately prior to the Effective Time shall be canceled,
retired and converted into and become the right to receive the
Merger Consideration described in this Article 3.
3.2. Merger Consideration. The "Merger Consideration"
shall consist of an aggregate of 276,571.43 shares (the "Merger
Consideration") of Parent's Common Stock, par value $.01 per
share (the "Parent Stock").
3.3. Allocation. The Merger Consideration shall be
allocated among the Shareholders of the Company in accordance
with the percentages set forth opposite each such Shareholder's
name next to his or her signature set forth below. If the
allocation results in fractional shares, then no fractional
shares shall be issued, and in lieu thereof a Shareholder shall
<PAGE>
be paid an amount in cash equal to such fractional part of a
share multiplied by the closing price of Parent's Common Stock on
the New York Stock Exchange on the trading day immediately
preceding the Closing.
3.4. Other Shares. Each share of common stock of
Parent issued and outstanding immediately prior to the Effective
Time shall remain outstanding and continue to represent one share
of common stock of the Surviving Corporation.
4. ADDITIONAL AGREEMENTS
4.1. The merger of the non-surviving corporation with
and into the Surviving Corporation shall be authorized in the
manner prescribed by the laws of the jurisdiction of organization
of the non-surviving corporation, and the Plan of Merger herein
made and approved shall be submitted to the shareholders of the
Surviving Corporation for their approval or rejection in the
manner prescribed by the provisions of the Tennessee Business
Corporation Act.
4.2. In the event that the merger of the non-surviving
corporation with and into the Surviving Corporation shall have
been duly authorized in compliance with the laws of the
jurisdiction of organization of the non-surviving corporation,
and in the event that the Plan of Merger shall have been approved
by the shareholders entitled to vote of the Surviving Corporation
in the manner prescribed by the provisions of the Tennessee
Business Corporation Act, the non-surviving corporation and the
Surviving Corporation hereby stipulate that they will cause to be
executed and filed and/or recorded any document or documents
prescribed by the laws of the State of Oregon and of the State of
Tennessee, and that they will cause to be performed all necessary
acts therein and elsewhere to effectuate the merger.
4.3. The Board of Directors and the proper officers of
the non-surviving corporation and the Surviving Corporation,
respectively, are hereby authorized, empowered, and directed to
do any and all acts and things, and to make, execute, deliver,
file, and/or record any and all instruments, papers, and
documents which shall be or become necessary, proper, or
convenient to carry out or put into effect any of the provisions
of this Plan of Merger or of the merger herein provided for.
IN WITNESS WHEREOF, the parties have executed or caused
this Agreement to be executed by their duly authorized agents as
of the day and year first above written.
MILLER INDUSTRIES, INC.
By: /s/ Frank Madonia
Name:____________________
Title:___________________
Address:_________________
_________________
_________________
Facsimile No.:_____________
SPEED'S ENTERPRISES, INC.
By: Harold R. Coe
Name: Harold R. Coe
Title: President
Address: Portland 97214
_______________
_______________
Facsimile No.: 503-233-3556
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
<PAGE>
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
Shareholder's
Percentage of Parent Stock:
SHAREHOLDERS:
33.34% /s/ Gary R. Coe
Gary R. Coe
Address: 6255 S.W. Sheridan St.
Portland, OR 97225
______________________
Facsimile No.:503-238-3388
2.27% /s/ Michael S. Coe
Michael S. Coe
Address: 17885 SW Zenith Pl.
Beaverton, OR 97007
____________________
Facsimile No.: ______________
2.27% /s/ Karen C. Co
Karen C. Coe
Address: 11795 SW Tualatin Rd #69
Tualatin, OR 97062
________________________
Facsimile No.:____________________
2.27% /s/ Robert L. Hill
Robert L. Hill
Address: 10440 S.W. 25th
Portland, ORE 97219
_________________________
Facsimile No.:____________________
2.27% /s/ Devin J. Edwards
Devin J. Edwards
Address: 262 SE Walnut
Hillsboro OK 97123
Facsimile No.: _____________
<PAGE>
1.52% /s/ Daryl B. Coe
Daryl B. Coe
Address: 18980 SW Cascadia St.
Aloha, OR 97006
_____________________
_____________________
_____________________
Facsimile No.:________________
The Harold R. Coe and June E. Coe Trust
56.06%
100% By: Harold R. Coe
Title: President
Address: 120 S.E. Clay
Portland, Oregon 97214
Facsimile No.: 503-238-5406
<PAGE>
ARTICLES OF AMENDMENT
OF
MILLER INDUSTRIES, INC.
1.
The name of the corporation is Miller Industries, Inc.
(the "Corporation").
2.
The Charter of the Corporation is amended by striking
Article 9 of the Charter in its entirety and inserting in lieu
thereof the following:
9. All corporate powers shall be exercised
by or under the authority of, and the business and
affairs of the Corporation shall be managed under the
direction of, a Board of Directors. The number of
directors of the Corporation shall not be less than
three (3) nor more than fifteen (15), the exact number
to be fixed by, or in the manner provided in, the
Bylaws. In each case, directors shall serve until
their respective successors shall have been elected and
qualified, subject to their earlier death, resignation,
or removal.
Any vacancy on the Board of Directors that
results from an increase in the number of directors
shall be filled only by a majority of the Board of
Directors then in office, and any other vacancy
occurring in the Board of Directors shall be filled
only by a majority of the directors then in office,
although less than a quorum, or by a sole remaining
director.
Any director may be removed from office but
only for cause and only by (a) the affirmative vote of
the holders of a majority of the voting power of the
shares entitled to vote for the election of directors,
considered for this purpose as one class, unless a vote
of a specific voting group is otherwise required by
law, or (b) the affirmative vote of a majority of the
entire Board of Directors then in office.
Notwithstanding the foregoing, whenever the
holders of any one or more classes or series of
preferred stock issued by the Corporation shall have
the right, voting separately, by class or series, to
elect directors at an annual or special meeting of
shareholders, the election, term of office, filling of
vacancies, and other features of such directorships
shall be governed by the terms of this Charter
applicable thereto. In the event of a vacancy among
the directors so elected by the holders of preferred
stock, the remaining directors elected by the holders
of preferred stock may fill the vacancy.
Notwithstanding any other provisions of this
Charter, the affirmative vote of holders of 66 2/3% of
the voting power of the shares entitled to vote at an
election of directors shall be required to amend,
<PAGE>
alter, change, or repeal, or to adopt any provision as
part of this Charter or as part of the Corporation's
Bylaws inconsistent with the purpose and intent of,
this Article 9.
3.
The foregoing amendment to the Charter was duly adopted
by the shareholders of the Corporation on August 29, 1997 and
shall become effective at 12:01 A.M., Eastern Time, on September
11, 1998.
IN WITNESS WHEREOF, the Corporation has caused these
Articles of Amendment to be executed by its duly authorized
officer this 17th day of July, 1998.
MILLER INDUSTRIES, INC.
By: /s/ Frank Madonia
Frank Madonia
Vice President
=========================================================================
CREDIT AGREEMENT
by and among
MILLER INDUSTRIES, INC.
and
MILLER INDUSTRIES TOWING EQUIPMENT INC.
as Borrowers,
NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION
as Agent and as Lender,
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
January 30, 1998
=========================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.1. Definitions. ........................................... 1
1.2. Rules of Interpretation. ............................... 25
ARTICLE II
The Revolving Credit Facility
2.1. Revolving Loans. ....................................... 27
2.2. Payment of Interest. ................................... 29
2.3. Payment of Principal. .................................. 29
2.4. Non-Conforming Payments. ............................... 31
2.5. Notes. ................................................. 31
2.6. Pro Rata Payments. ..................................... 31
2.7. Voluntary Commitment Reductions. ....................... 31
2.8. Conversions and Elections of Subsequent Interest
Periods. ............................................... 32
2.9. Increase and Decrease in Amounts. ...................... 32
2.10. Commitment Fee. ........................................ 33
2.11. Deficiency Advances. ................................... 33
2.12. Use of Proceeds. ....................................... 33
2.13. Extension of Stated Termination Date ................... 33
2.14. Swing Line ............................................. 34
2.15. Additional Fees ........................................ 35
ARTICLE III
Letters of Credit
3.1. Letters of Credit. .................................... 36
3.2. Reimbursement........................................... 36
3.3. Letter of Credit Facility Fees.......................... 39
3.4. Existing Letters of Credit. ............................ 39
<PAGE>
ARTICLE IV
Security
4.1. Guaranty. ............................................ 40
4.2. Stock Pledge. .......................................... 40
4.3. Negative Pledge. ....................................... 40
4.4. Security Interests. .................................... 40
4.5. Further Assurances. .................................... 41
ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return. ..................... 42
5.2. Limitation on Types of Loans. .......................... 43
5.3. Illegality. ........................................... 43
5.4. Treatment of Affected Loans. ........................... 44
5.5. Compensation. ........................................ 44
5.6. Taxes. ................................................ 45
5.7. Lending Office. ........................................ 46
5.8. Syndication Costs. ..................................... 47
5.9. Replacement Banks. ..................................... 47
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance ......................... 48
6.2. Conditions of all Loans and Letters of Credit. ......... 50
ARTICLE VII
Representations and Warranties
7.1. Organization and Authority. ........................... 53
7.2. Loan Documents. ....................................... 53
7.3. Solvency. .............................................. 54
7.4. Subsidiaries and Stockholders. ......................... 54
7.5. Ownership Interests. ................................... 54
7.6. Financial Condition. ................................... 54
7.7. Title to Properties. ................................... 55
7.8. Taxes. ................................................ 55
7.9. Other Agreements. ...................................... 55
7.10. Litigation. ........................................... 55
ii<PAGE>
7.11. Margin Stock. ......................................... 56
7.12. Investment Company. .................................... 56
7.13. Patents, Etc. .......................................... 56
7.14. No Untrue Statement. ................................... 56
7.15. No Consents, Etc. ...................................... 56
7.16. Employee Benefit Plans. ................................ 57
7.17. No Default. ............................................ 58
7.18. Environmental Matters. ................................. 58
7.19. Employment Matters. .................................... 59
7.20. RICO. .................................................. 59
7.21. Perfected Security Instruments ......................... 59
ARTICLE VIII
Affirmative Covenants
8.1. Financial Reports, Etc. ............................... 60
8.2. Maintain Properties. .................................. 61
8.3. Existence, Qualification, Etc. ......................... 61
8.4. Regulations and Taxes. ................................. 61
8.5. Insurance. ............................................ 62
8.6. True Books. ............................................ 62
8.7. Right of Inspection. ................................... 62
8.8. Observe all Laws. ...................................... 62
8.9. Governmental Licenses................................... 62
8.10. Covenants Extending to Other Persons. .................. 62
8.11. Officer's Knowledge of Default. ........................ 62
8.12. Suits or Other Proceedings. ........................... 63
8.13. Notice of Environmental Complaint or Condition. ........ 63
8.14. Environmental Compliance. .............................. 63
8.15. Indemnification. ...................................... 63
8.16. Further Assurances. .................................... 64
8.17. Employee Benefit Plans. ................................ 64
8.18. Continued Operations. .................................. 65
8.19. Additional Support Documents. .......................... 65
8.20. Subsidiary Support of Permitted Indebtedness. .......... 67
8.21. Opinions of Foreign Counsel. ........................... 67
8.22. Post-Closing Covenants. ................................ 67
8.23. Uniform Commercial Code Financing Statements. .......... 67
iii<PAGE>
ARTICLE IX
Negative Covenants
9.1. Financial Covenants..................................... 69
9.2. Acquisitions. .......................................... 70
9.3. Liens. ................................................. 70
9.4. Indebtedness. .......................................... 71
9.5. Transfer of Assets. .................................... 71
9.6. Investments. .......................................... 72
9.7. Merger or Consolidation. ............................... 72
9.8. Restricted Payments. .................................. 73
9.9. Transactions with Affiliates. ......................... 73
9.10. Compliance with ERISA, the Code and Foreign
Benefit Laws. ........................................ 73
9.11. Accounting Changes. ................................... 74
9.12. Dissolution, etc. ...................................... 74
9.13. Limitations on Sales and Leasebacks. .................. 74
9.14. Change in Control. ..................................... 75
9.15. Limitation on Guaranties. .............................. 75
9.16. Negative Pledge Clauses. ............................... 75
9.17. Prepayments, Etc. of Indebtedness. ..................... 75
9.18. Restrictive Agreements. ................................ 75
ARTICLE X
Events of Default and Acceleration
10.1. Events of Default. .................................... 76
10.2. Agent to Act. .......................................... 79
10.3. Cumulative Rights. .................................... 79
10.4. No Waiver. ........................................... 79
10.5. Allocation of Proceeds. ................................ 79
10.6. Judgment Currency. .................................... 80
ARTICLE XI
The Agent
11.1. Appointment, Powers, and Immunities. ................... 81
11.2. Reliance by Agent. ..................................... 81
11.3. Defaults. .............................................. 82
11.4. Rights as Lender. ...................................... 82
11.5. Indemnification. ....................................... 82
11.6. Non-Reliance on Agent and Other Lenders. ............... 83
11.7. Resignation of Agent. ................................ 83
iv<PAGE>
11.8. Fees. .................................................. 83
ARTICLE XII
Miscellaneous
12.1. Assignments and Participations.......................... 84
12.2. Notices. .............................................. 85
12.3. Right of Set-off; Adjustments. ......................... 86
12.4. Survival. ............................................. 87
12.5. Expenses. .............................................. 87
12.6. Amendments and Waivers. ............................... 88
12.7. Counterparts. .......................................... 88
12.8. Termination. ........................................... 88
12.9. Indemnification. ....................................... 89
12.10.Severability. .......................................... 89
12.11.Entire Agreement. ...................................... 89
12.12.Agreement Controls. .................................... 90
12.13.Usury Savings Clause. .................................. 90
12.14.Governing Law; Waiver of Jury Trial. ................... 90
12.15.Payments .............................................. 91
12.16.Subordination .......................................... 92
12.17.Joint and Several Obligations .......................... 92
EXHIBIT A Applicable Commitment Percentages ............... A-1
EXHIBIT B Form of Assignment and Acceptance ............... B-1
EXHIBIT C Notice of Appointment (or Revocation) of
Authorized Representative ..................... C-1
EXHIBIT D-1 Form of Borrowing Notice ........................ D-1-1
EXHIBIT D-2 Form of Borrowing Notice -- Swing Line Loans..... D-2-1
EXHIBIT E Form of Collateral Assignment of Interests....... E-1
EXHIBIT F Form of Guaranty ............................... F-1
EXHIBIT G Form of Interest Rate Selection Notice .......... G-1
EXHIBIT H Form of LC Account Agreement .................... H-1
EXHIBIT I Form of Negative Pledge Agreement ............... I-1
EXHIBIT J-1 Form of Revolving Note .......................... J-1-1
EXHIBIT J-2 Form of Swing Line Note ......................... J-2-1
EXHIBIT K-1 Form of Stock Pledge Agreement (Miller) ......... K-1-1
EXHIBIT K-2 Form of Stock Pledge Agreement (Domestic
Subsidiaries) ................................. K-2-1
EXHIBIT L Form of Opinion of Borrowers' and Guarantors'
Counsel ...................................... L-1-1
EXHIBIT M Compliance Certificate .......................... M-1
v<PAGE>
SCHEDULE 1.1(a) Existing Debt
SCHEDULE 1.1(b) Existing Letters of Credit
SCHEDULE 7.4 Subsidiaries
SCHEDULE 7.6 Existing Indebtedness
SCHEDULE 7.7 Title to Properties
SCHEDULE 7.10 Litigation
SCHEDULE 7.19 Employment Matters
SCHEDULE 8.5 Insurance
vi
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of January 30, 1998
(the "Agreement"), is made by and among MILLER INDUSTRIES, INC.,
a Tennessee corporation having its principal place of business in
Ooltewah, Tennessee ("Miller"), and MILLER INDUSTRIES TOWING
EQUIPMENT INC., a Delaware corporation and wholly owned
subsidiary of Miller having its principal place of business in
Ooltewah, Tennessee ("Miller Towing") ("Miller and Miller Towing
may be referred to individually herein as a "Borrower" and
collectively as the Borrowers"), NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION, a national banking association organized
and existing under the laws of the United States, in its capacity
as a Lender, as the Swing Line Lender and as the Issuing Bank
(each as hereinafter defined) ("NationsBank"), and each other
financial institution executing and delivering a signature page
hereto and each other financial institution which may hereafter
execute and deliver an instrument of assignment with respect to
this Agreement pursuant to Section 12.1 (hereinafter such
financial institutions may be referred to individually as a
"Lender" or collectively as the "Lenders"), and NATIONSBANK OF
TENNESSEE, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States, in
its capacity as agent for the Lenders (in such capacity, and
together with any successor agent appointed in accordance with
the terms of Section 11.7, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrowers have requested that the Lenders
make available to the Borrowers a revolving credit facility of up
to $150,000,000, which will include (i) a $5,000,000 sublimit for
the issuance of letters of credit and (ii) a $5,000,000 sublimit
for a swing line, the proceeds of which revolving credit facility
are to be used as provided in Section 2.12 hereof; and
WHEREAS, the Lenders are willing to make such revolving
credit facility available to the Borrowers, the Swing Line Lender
is willing to make the swing line facility available to the
Borrowers and the Issuing Bank is willing to issue letters of
credit on behalf of the Borrowers, all upon the terms and
conditions set forth herein;
NOW, THEREFORE, the Borrowers, the Lenders and the
Agent hereby agree as follows:
ARTICLE I
Definitions and Terms
---------------------
1.1. DEFINITIONS. For the purposes of this Agreement,
in addition to the definitions set forth above, the following
terms shall have the respective meanings set forth below:
"Acquisition" means the acquisition of (i) a
controlling interest in another Person (including the
purchase of an option, warrant or convertible or
similar type security to acquire such a controlling
interest at the time it becomes exercisable by the
holder thereof), whether by purchase of such equity
interest or upon exercise of an option or warrant for,
or conversion of securities into, such equity interest,
<PAGE>
or (ii) assets of another Person which constitute all
or substantially all of the assets of such Person or of
a line or lines of business conducted by such Person.
The term "controlling interest" means the possession,
directly or indirectly, of the power to direct or cause
the direction of the management and policies of a
Person, whether through ownership of Voting Stock, by
contract or otherwise.
"Advance" means a borrowing under the Revolving
Credit Facility consisting of a Base Rate Loan or a Eurodollar
Rate Loan.
"Affiliate" means any Person (i) which directly or
indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with
Miller; or (ii) which beneficially owns or holds 5% or
more of any class of the outstanding Voting Stock of
Miller or (iii) 5% or more of any class of the
outstanding Voting Stock (or in the case of a Person
which is not a corporation, 5% or more of the equity
interest) of which is beneficially owned or held by
Miller. The term "control" means the possession,
directly or indirectly, of the power to direct or cause
the direction of the management and policies of a
Person, whether through ownership of Voting Stock, by
contract or otherwise.
"Applicable Commitment Percentage" means, with
respect to each Lender that portion of the Total
Revolving Credit Commitment (including its
Participations and its obligations hereunder to the
Issuing Bank to acquire Participations) allocable to
such Lender (i) with respect to Lenders as of the
Closing Date, as set forth in Exhibit A, and (ii) with
respect to any Person who becomes a Lender hereafter,
as reflected in each Assignment and Acceptance to which
such Lender is a party Assignee; provided that the
Applicable Commitment Percentage of each Lender shall
be increased or decreased to reflect any assignments to
or by such Lender effected in accordance with Section
12.1.
"Applicable Lending Office" means, for each Lender
and for each Type of Loan, the "Lending Office" of such
Lender (or of an affiliate of such Lender) designated
for such Type of Loan on the signature pages hereof or
such other office of such Lender (or an affiliate of
such Lender) as such Lender may from time to time
specify to the Agent and Miller by written notice in
accordance with the terms hereof as the office by which
its Loans of such Type are to be made and maintained.
"Applicable Margin" means for each Eurodollar Rate
Loan or Base Rate Loan that percent per annum as set
forth below, which shall be (i) determined as of each
Determination Date based upon the computations set
forth in the compliance certificates furnished to the
Agent pursuant to Sections 8.1(a)(ii) or 8.1(b)(ii) as
of such Determination Date and for the period then
ended, subject to review and approval of such
computations by the Agent, and any such change shall be
effective commencing on the fifth Business Day
2
<PAGE>
following the date such certificate is received (or, if
earlier, the date such certificate was required under
such sections to be delivered) (the "Compliance Date")
and (ii) applicable to all Eurodollar Rate Loans and
all Base Rate Loans existing on and after the most
recent Compliance Date, based upon the ratio of (x)
Consolidated Funded Total Indebtedness as at the
applicable Determination Date to (y) Consolidated
EBITDA for the Four-Quarter Period of Miller ended at
the applicable Determination Date, as specified below:
<TABLE>
<CAPTION>
Ratio of Applicable Margin Applicable Margin
Consolidated Funded Total Indebtedness for Eurodollar for Base Rate
to Consolidated EBITDA Rate Loans Loans
- -------------------------------------- ------------------- -----------------
<S> <C> <C>
Greater than or equal to 2.50 to 1.00 1.500% .250%
Greater than or equal to 2.00 to 1.00 but 1.250% .000%
less than 2.50 to 1.00
Greater than or equal to 1.50 to 1.00 but 1.000% .000%
less than 2.00 to 1.00
Greater than or equal to .50 to 1.00 but .750% .000%
less than 1.50 to 1.00
Less than .50 to 1.00 .625% .000%
</TABLE>
The initial Applicable Margin for Eurodollar Rate Loans
and Base Rate Loans to be in effect as of the Closing
Date and at all times thereafter until the first
Compliance Date to occur after the Closing Date shall
be .750% and .000%, respectively.
"Applications and Agreements for Letters of Credit"
means, collectively, the Applications and Agreements for
Letters of Credit, or similar documentation, executed by a
Borrower from time to time and delivered to the Issuing Bank to
support the issuance of Letters of Credit.
"Approved Fund" means, with respect to any Lender that is
a fund that invests in commercial loans, any other fund
that invests in commercial loans and is managed by the same
investment advisor as such Lender or by an affiliate of such
investment advisor.
"Asset Disposition" means any voluntary disposition, whether
by sale, lease or transfer, of (a) any or all of the assets,
excluding cash, cash equivalents and inventory, of Miller or
its Subsidiaries, and (b) any of the capital stock, or securities
and investments interchangeable, exercisable or convertible for or
into, or otherwise entitling the holder to receive, any of the
capital stock of any Subsidiary (other than a disposition to Miller
or a Guarantor in the case of (a) and (b)); provided, however, the
term "Asset Disposition" shall not include (i) any sales of used
trucks in the towing services division, (ii) any sales of conditional
sales contracts or finance leases originated by Miller Financial
in connection with the financing of sales of inventory, in each
case in the ordinary course of business consistent with past practice
and (iii) any transfers of assets to a Foreign Subsidiary pursuant to
Section 9.5(d).
3<PAGE>
"Assigned Interest" has the meaning ascribed to
such term in the Collateral Assignment of Interests.
"Assignment and Acceptance" shall mean an Assignment
and Acceptance in the form of Exhibit B (with blanks
appropriately filled in) executed and delivered to the Agent by
the parties thereto in connection with an assignment of a
Lender's interest under this Agreement pursuant to Section 12.1.
"Authorized Representative" means any of the Chief
Executive Officer, President, any Executive or Senior
Vice President of Miller or, with respect to financial
matters, the chief financial officer or Treasurer of
Miller, or any other Person expressly designated by the
Board of Directors of Miller (or the appropriate
committee thereof) as an Authorized Representative of
Miller, as set forth from time to time in a certificate
in the form of Exhibit C.
"Bank America Lease Transaction" means that
transaction evidenced by that certain Lease Intended As
Security dated as of August 12, 1997 between BA Leasing
& Capital Corporation, a California corporation with an
office at 555 California Street, 4th Floor, San
Francisco, California 94104, as Lessor, and RoadOne
Service, Inc., a Delaware corporation, with its
principal office at 6025 Lee Highway, Executive Park,
Suite 301, Chattanooga, Tennessee 37421, as Lessee.
"Base Rate" means the sum of (i) for any day, the
rate per annum equal to the higher of (a) the Federal
Funds Rate for such day plus one-half of one percent
(0.5%) or (b) the Prime Rate for such day and (ii) the
Applicable Margin. Any change in the Base Rate due to
a change in the Prime Rate or the Federal Funds Rate
shall be effective on the effective date of such change
in the Prime Rate or Federal Funds Rate.
"Base Rate Loan" means a Loan for which the rate
of interest is determined by reference to the Base
Rate.
"Base Rate Refunding Loan" means a Base Rate Loan
or Swing Line Loan made either to (i) satisfy
Reimbursement Obligations arising from a drawing under
a Letter of Credit or (ii) pay the Swing Line Lender in
respect of Swing Line Outstandings.
"Board" means the Board of Governors of the
Federal Reserve System (or any successor body).
"Borrowers' Account" means a demand deposit
account with the Agent, which may be maintained at one
or more offices of the Agent or an agent of the Agent.
"Borrowing Notice" means the notice delivered by
an Authorized Representative in connection with an
Advance under the Revolving Credit Facility or a Swing
Line Loan in the forms of Exhibits D-1 and D-2,
respectively.
4<PAGE>
"Business Day" means, (i) with respect to any Base
Rate Loan, any day which is not a Saturday, Sunday or a
day on which banks in the States of New York, North
Carolina and Tennessee are authorized or obligated by
law, executive order or governmental decree to be
closed, and (ii) with respect to any Eurodollar Rate
Loan, any day which is a Business Day, as described
above, and on which the relevant international
financial markets are open for the transaction of
business contemplated by this Agreement in London,
England, New York, New York, Charlotte, North Carolina
and Chattanooga, Tennessee.
"Capital Expenditures" means, with respect to
Miller and its Subsidiaries, for any period the sum of
(without duplication) (i) all expenditures (whether
paid in cash or accrued as liabilities) by Miller or
any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or
comparable items on the consolidated balance sheet of
Miller and its Subsidiaries, including without
limitation all transactional costs incurred in
connection with such expenditures provided the same
have been capitalized, excluding, however, the amount
of any Capital Expenditures paid for with proceeds of
casualty insurance as evidenced in writing and
submitted to the Agent together with any compliance
certificate delivered pursuant to Section 8.1(a) or
(b), plus (ii) with respect to any Capital Lease
entered into by Miller or its Subsidiaries during such
period, the present value of the lease payments due
under such Capital Lease over the term of such Capital
Lease applying a discount rate equal to the interest
rate provided in such Capital Lease (or in the absence
of a stated interest rate, that rate used in the
preparation of the financial statements described in
Section 8.1(a)), plus (iii) all expenditures (paid in
cash or accrued for) with respect to Off Balance Sheet
Liabilities of Miller, including but not limited to the
Bank America Lease Transaction and other sale/leaseback
transactions, all of the foregoing determined on a
consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent
Basis; provided, however, there shall be excluded from
the determination of Capital Expenditures expenses
incurred on or before July 31, 1999 in an aggregate
amount not to exceed $3,000,000 and which are
specifically associated with Miller's expansion of its
facility at Ooltewah, Tennessee or its facility at
Greeneville, Tennessee.
"Capital Leases" means all leases which have been
or should be capitalized in accordance with GAAP as in
effect from time to time including Statement No. 13 of
the Financial Accounting Standards Board and any
successor thereof.
"Certificate and Receipt of Registrar" means,
collectively or individually as the context may
indicate, (i) the Certificate and Receipt of Registrar
dated as of the Closing Date among certain Subsidiaries
and the Agent, if any Collateral Assignment of
Interests is required to be delivered on the Closing
5<PAGE>
Date, and (ii) any additional Certificate and Receipt
of Registrar delivered to the Agent pursuant to Section
8.19, in each case in the form attached to the
Collateral Assignment of Interests, as any such
Certificate and Receipt of Registrar may be hereafter
amended, supplemented or restated from time to time.
"Change of Control" means, at any time:
5<PAGE>
(i) any "person" or "group" (each as
used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act), other than William G. Miller (or
his spouse, lineal descendants or trusts for their
benefit), either (A) becomes the "beneficial
owner" (as defined in Rule 13d-3 of the Exchange
Act ), directly or indirectly, of Voting Stock of
the Borrower (or securities convertible into or
exchangeable for such Voting Stock) representing
25% or more of the combined voting power of all
Voting Stock of Miller (on a fully diluted basis)
or (B) otherwise has the ability, directly or
indirectly, to elect a majority of the board of
directors of Miller;
(ii) during any period of up to 12
consecutive months, commencing on the Closing
Date, individuals who at the beginning of such 12-
month period were directors of Miller shall cease
for any reason (other than the death, disability
or retirement of an officer of Miller that is
serving as a director at such time so long as
another officer of Miller replaces such Person as
a director) to constitute a majority of the board
of directors of Miller; or
(iii) any Person or two or more
Persons (other than those Persons identified in
clause (i) above or existing directors) acting in
concert shall have acquired, by contract or
otherwise, or shall have entered into a contract
or arrangement and satisfied any conditions to
effectiveness, that, upon consummation thereof,
will result in its or their acquisition of the
power to exercise, directly or indirectly, a
controlling influence on the management or
policies of Miller.
"Closing Date" means the date as of which this
Agreement is executed by the Borrowers, the Lenders and
the Agent and on which the conditions set forth in
Section 6.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as
amended, and any regulations promulgated thereunder.
"Collateral" means the collateral described in the
Security Instruments.
"Collateral Assignment of Interests" means,
collectively or individually as the context may
indicate, (i) the Collateral Assignment of Interests
dated as of the Closing Date among Miller, certain
Subsidiaries and the Agent if any such Collateral
Assignment is required to be delivered on the Closing
Date, and (ii) any additional Collateral Assignment of
Interests delivered to the Agent pursuant to Section
8.19, in each case substantially in the form of Exhibit
E, as any such Collateral Assignment of Interests may
be hereafter amended, supplemented or restated from
time to time.
"Commitment Fee Rate" means one quarter percent
(0.250%) per annum.
"Compliance Date" has the meaning ascribed to such
term in the definition of "Applicable Margin" in
Section 1.1.
6<PAGE>
"Consistent Basis" in reference to the application
of GAAP means the accounting principles observed in the
period referred to are comparable in all material
respects to those applied in the preparation of the
audited financial statements of Miller referred to in
Section 7.6(a).
"Consolidated EBITDA" means, with respect to
Miller and its Subsidiaries for any Four-Quarter Period
ending on the date of computation thereof, (A) the sum
of, without duplication, (i) Consolidated Net Income,
(ii) Consolidated Interest Expense, (iii) taxes on
income, (iv) amortization, (v) depreciation and (vi)
non-recurring noncash restructuring charges, minus (B)
the sum of, without duplication, (a) net gains on the
sale, conversion or other disposition of capital assets
(other than net gains on the sale, conversion or other
disposition of used trucks in the towing services
division in the ordinary course of business consistent
with past practice), (b) net gains on the acquisition,
retirement, sale or other disposition of capital stock
and other securities of Miller or its Subsidiaries, (c)
net gains on the collection of proceeds of life
insurance policies, (d) any write-up of any asset other
than as permitted in accordance with Statement No. 16
of the Financial Accounting Standards Board, and (e)
any other net gain or credit of an extraordinary nature
as determined in accordance with GAAP applied on a
Consistent Basis; provided, however, that for each of
the first four fiscal quarters following any
Acquisition, the calculation of Consolidated EBITDA for
each Four-Quarter Period ending on the last day of each
such fiscal quarter shall include the historical
financial performance of the acquired business for that
portion of such Four-Quarter Period occurring prior to
such Acquisition, to the extent that such Acquisition
has not otherwise been reflected in Miller's
consolidated financial statements.
"Consolidated Fixed Charge Ratio" means, with
respect to Miller and its Subsidiaries for any Four-
Quarter Period ending on the date of computation
thereof, the ratio of (i) Consolidated EBITDA plus, to
the extent deducted in arriving at Consolidated EBITDA,
lease, rental and all other payments made in respect of
or in connection with operating leases, less (without
duplication) Capital Expenditures for such period less
(without duplication) income taxes paid in cash during
such period, to (ii) Consolidated Fixed Charges, in
each case during such Four-Quarter Period.
"Consolidated Fixed Charges" means, with respect
to Miller and its Subsidiaries, for any Four-Quarter
Period ending on the date of computation thereof, the
sum of, without duplication, (i) Consolidated Interest
Expense, plus (ii) to the extent deducted in arriving
at Consolidated EBITDA, lease, rental and all other
payments made in respect of or in connection with
operating leases, plus (iii) current maturities of
Consolidated Funded Total Indebtedness, plus (iv)
current maturities of Capital Leases, plus (v) all
payments (contingent, deferred or otherwise) in respect
of Acquisitions representing any deferred portion of
the consideration for such Acquisition, plus (vi) all
payments in respect of Off Balance Sheet Liabilities,
including but not limited to the Bank America Lease
Transaction, all determined on a consolidated basis in
accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis; provided,
however, that for each of the first four fiscal
quarters following any Acquisition, the calculation of
Consolidated Fixed Charges for each Four-Quarter Period
ending on the last day of each such fiscal quarter
shall include the historical fixed charges of the
acquired business for that portion of such Four-Quarter
Period occurring prior to such Acquisition, to the
7
<PAGE>
extent that such Acquisition has not otherwise been
reflected in Miller's consolidated financial
statements.
"Consolidated Funded Senior Indebtedness" means at
any time as of which the amount thereof is to be
determined, (i) all Consolidated Funded Total
Indebtedness then outstanding, including without
limitation any Loans, minus (ii) the aggregate
principal amount of all Subordinated Debt.
"Consolidated Funded Total Indebtedness" means, at
any time as of which the amount thereof is to be
determined, all Indebtedness for Money Borrowed of
Miller and its Subsidiaries (including, but not limited
to, all current maturities and borrowings under short
term loans) plus the face amount of all issued and
outstanding letters of credit and all obligations (to
the extent not duplicative) arising under such letters
of credit (other than letters of credit issued to
secure workers' compensation obligations and having an
aggregate face amount outstanding at any time not in
excess of $3,000,000) plus all liabilities with respect
to Off Balance Sheet Liabilities, including but not
limited to the Bank America Lease Transaction, all
determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a
Consistent Basis.
"Consolidated Interest Expense" means, for any
period of computation thereof, the gross interest
expense of Miller and its Subsidiaries, including
without limitation (i) the current amortized portion of
debt discounts to the extent included in gross interest
expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Swap
Agreement and Letters of Credit) payable in connection
with the incurrence of Indebtedness to the extent
included in gross interest expense and (iii) the
portion of any payments made in connection with Capital
Leases allocable to interest expense, in each of the
foregoing cases determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Net Income" means, for any period of
computation thereof, the gross revenues from operations
of Miller and its Subsidiaries (including payments
received by Miller and its Subsidiaries of (i) interest
income, and (ii) dividends and distributions made in
the ordinary course of their businesses by Persons in
which investment is permitted pursuant to this
Agreement and not related to an extraordinary event),
less all operating and non-operating expenses of Miller
and its Subsidiaries including taxes on income, all
determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"Consolidated Tangible Shareholders' Equity"
means, as of any date on which the amount thereof is to
be determined, the sum of the following in respect of
Miller and its Subsidiaries (determined on a
consolidated basis): (i) the amount of issued and
outstanding share capital, plus (ii) the amount of
additional paid-in capital and retained earnings (or,
in the case of a deficit, minus the amount of such
deficit), plus (iii) the amount of any foreign currency
translation adjustment (if positive, or, if negative,
minus the amount of such translation adjustment), plus
(iv) the amount of any non-recurring noncash
restructuring charges incurred since October 31, 1997,
minus (v) the amount of any treasury stock, and minus
8<PAGE>
(vi) intangibles, including without limitation
goodwill, patents and trademarks, all as determined in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Total Assets" means, as of the date
on which the amount thereof is to be determined, the
net book value of all assets of Miller and its
Subsidiaries as determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Contingent Obligation" of any Person means all
contingent liabilities required (or which, upon the
creation or incurring thereof, would be required) to be
included in the financial statements (including
footnotes) of such Person in accordance with GAAP
applied on a Consistent Basis, including Statement
No. 5 of the Financial Accounting Standards Board, all
Rate Hedging Obligations and any obligation of such
Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation of any other
Person (the "primary obligor") in any manner, whether
directly or indirectly, including obligations of such
Person however incurred:
(1) to purchase such Indebtedness or other
obligation or any property or assets constituting
security therefor;
(2) to advance or supply funds in any manner
(i) for the purchase or payment of such
Indebtedness or other obligation, or (ii) to
maintain a minimum working capital, net worth or
other balance sheet condition or any income
statement condition of the primary obligor;
(3) to grant or convey any lien, security
interest, pledge, charge or other encumbrance on
any property or assets of such Person to secure
payment of such Indebtedness or other obligation
of the primary obligor;
(4) to lease property or to purchase
securities or other property or services primarily
for the purpose of assuring the owner or holder of
such Indebtedness or obligation of the ability of
the primary obligor to make payment of such
Indebtedness or other obligation; or
(5) otherwise to assure the owner of the
Indebtedness or such obligation of the primary
obligor against loss in respect thereof.
"Continue", "Continuation" and "Continued" shall
refer to the continuation pursuant to Section 2.8
hereof of a Eurodollar Rate Loan of one Type as a
Eurodollar Rate Loan of the same Type from one Interest
Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall
refer to a conversion pursuant to Section 2.8 or
Article V of one Type of Loan into another Type of
Loan.
"Cost of Acquisition" means, as at the date of
closing any Acquisition, the sum of the following: (i)
any cash or other property (excluding the value of
capital stock or warrants or options to acquire capital
stock of Miller or any Subsidiary) or the unpaid
principal amount of any debt instrument given as
consideration in such Acquisition, and (ii) any
Indebtedness or liabilities assumed by Miller or its
9
<PAGE>
Subsidiaries in connection with such Acquisition
(excluding (x) trade payables of the acquired business
incurred in the ordinary course of business and (y)
accrued expenses of any acquired business provided such
accrued expenses relate to utilities, payroll and other
similar operating expenses incurred in the ordinary
course of business).
"Debt Offering" means the incurrence of any
Indebtedness for Money Borrowed not otherwise permitted
hereunder in connection with a public offering or private
placement of debt securities of Miller or any Subsidiary
(other than debt securities issued to Miller or a
Guarantor) or otherwise.
"Default" means any event or condition which, with
the giving or receipt of notice or lapse of time or
both, would constitute an Event of Default hereunder.
"Default Rate" means (i) with respect to each
Eurodollar Rate Loan, until the end of the Interest
Period applicable thereto, a rate of two percent (2%)
above the Eurodollar Rate applicable to such Loan, and
thereafter at a rate of interest per annum which shall
be two percent (2%) above the Base Rate, (ii) with
respect to Base Rate Loans, at a rate of interest per
annum which shall be two percent (2%) above the Base
Rate, and (iii) in any case, the maximum rate permitted
by applicable law, if lower.
"Determination Date" means the last day of each
fiscal quarterly period of Miller.
"Direct Foreign Subsidiary" means any Foreign
Subsidiary a majority of whose outstanding voting stock
is owned directly by Miller or a Domestic Subsidiary.
"Dollars" and the symbol "$" means dollars
constituting legal tender for the payment of public and
private debts in the United States of America.
"Domestic Subsidiary" means any Subsidiary of
Miller organized under the laws of the United States of
America or a state or territory thereof.
"Eligible Assignee" means (i) a Lender; (ii) an
affiliate or Approved Fund of a Lender; and (iii) any other
Person approved by the Agent and, unless an Event of
Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 12.1,
Miller, provided that such approval shall not be unreasonably
withheld or delayed by Miller and such approval shall be
deemed given by Miller within five (5) Business Days
after notice of such proposed assignment has been provided by
the assigning Lender to Miller; provided further, however,
that neither Miller nor an affiliate of Miller shall qualify
as an Eligible Assignee.
"Eligible Securities" means the following
obligations and any other obligations previously
approved in writing by the Agent:
10<PAGE>
(a) Government Securities;
(b) demand or interest bearing time deposits
issued by any Lender or certificates of deposit
maturing within one year from the date of issuance
thereof and issued by a bank or trust company
organized under the laws of the United States or
of any state thereof having capital surplus and
undivided profits aggregating at least
$400,000,000 and being rated "A-3" or better by
S&P or "A" or better by Moody's;
(c) Repurchase Agreements;
(d) Municipal Obligations;
(e) Pre-Refunded Municipal Obligations;
(f) shares of mutual funds which invest in
obligations described in paragraphs (a) through
(e) above, the shares of which mutual funds are at
all times rated "AAA" by S&P;
(g) tax-exempt or taxable adjustable rate
preferred stock issued by a Person having a rating
of its long term unsecured debt of "A" or better
by S&P or "A-1" or better by Moody's; and
(h) asset-backed remarketed certificates of
participation representing a fractional undivided
interest in the assets of a trust, which
certificates are rated at least "A-1" by S&P and
"P-1" by Moody's.
"Employee Benefit Plan" means (i) any employee
benefit plan, including any Pension Plan, within the
meaning of Section 3(3) of ERISA which (A) is
maintained for employees of Miller, any of its ERISA
Affiliates or any Subsidiary or is assumed by Miller,
any of its ERISA Affiliates or any Subsidiary in
connection with any Acquisition or (B) has at any time
been maintained for the employees of Miller, any
current or former ERISA Affiliate or any Subsidiary and
(ii) any plan, arrangement, understanding or scheme
maintained by Miller or any Subsidiary that provides
retirement, deferred compensation, employee or retiree
medical or life insurance, severance benefits or any
other benefit covering any employee or former employee
and which is administered under any Foreign Benefit Law
or regulated by any Governmental Authority other than
the United States of America.
"Environmental Laws" means any federal, state,
local or foreign statute, law, ordinance, code, rule,
regulation, order, decree, permit or license
regulating, relating to, or imposing liability or
standards of conduct concerning, any environmental
matters or conditions, environmental protection or
conservation, including without limitation, the
11<PAGE>
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended; the Superfund
Amendments and Reauthorization Act of 1986, as amended;
the Resource Conservation and Recovery Act, as amended;
the Toxic Substances Control Act, as amended; the Clean
Air Act, as amended; the Clean Water Act, as amended,
together with all regulations promulgated under any of
the foregoing.
"Equity Offering" means a public or private
offering of equity securities (including, without limitation,
any security or investment exchangeable, exercisable or
convertible for or into, or otherwise entitling the holder
to receive, equity securities) of Miller or any Subsidiary (other
than securities issued to Miller or another Subsidiary).
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and
any successor statute and all rules and regulations
promulgated thereunder.
"ERISA Affiliate", as applied to Miller, means any
Person or trade or business which is a member of a
group which is under common control with Miller, who
together with Miller, is treated as a single employer
within the meaning of Section 414(b), (c), (m) or (o)
of the Code.
"Eurodollar Rate" means the interest rate per
annum calculated according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable Margin
----------------------
Rate 1 - Reserve Requirement Margin
"Eurodollar Rate Loan" means a Loan for which the
rate of interest is determined by reference to the
Eurodollar Rate.
"Event of Default" means any of the occurrences
set forth as such in Section 10.1.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended, and the regulations promulgated
thereunder.
"Existing Debt" means such Indebtedness as set
forth on Schedule 1.1(a).
"Existing Letter of Credit" means any of those
letters of credit set forth on Schedule 1.1(b).
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York (Statistical
Release H-15) on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal
12<PAGE>
Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published
on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate charged to the Agent (in its
individual capacity) on such day on such transactions as
determined by the Agent.
"Fiscal Year" means the twelve month fiscal period
of Miller commencing on the May 1 of each calendar year
and ending on April 30 of the following calendar year;
provided, that in the event Miller changes its Fiscal
Year to a calendar fiscal year, "Fiscal Year" shall
mean the twelve month fiscal period of Miller
commencing on January 1 and ending on December 31 of
each calendar year.
"Fiscal Year End" means the last day of a Fiscal
Year and "Fiscal Year End" followed by a numerical year
means the last day of such Fiscal Year.
"Foreign Benefit Law" means any applicable
statute, law, ordinance, code, rule, regulation, order
or decree of any nation other than the United States of
America, or any province, state, territory,
protectorate or other political subdivision of any such
nation, regulating, relating to, or imposing liability
or standards of conduct concerning, any Employee
Benefit Plan.
"Foreign Subsidiary" means any Subsidiary of
Miller that is not a Domestic Subsidiary.
"Four-Quarter Period" means a period of four full
consecutive fiscal quarters of Miller and its
Subsidiaries, taken together as one accounting period.
"GAAP" or "Generally Accepted Accounting
Principles" means generally accepted accounting
principles, being those principles of accounting which
are set forth in pronouncements of the Financial
Accounting Standards Board or the American Institute of
Certified Public Accountants or which have other
substantial authoritative support and are applicable in
the circumstances as of the date of a report.
"Government Securities" means direct obligations
of, or obligations the timely payment of principal and
interest on which are fully and unconditionally
guaranteed by, the United States of America or any
agency thereof.
"Governmental Authority" shall mean any Federal,
state, municipal, national or other governmental
department, commission, board, bureau, court, agency or
instrumentality or political subdivision thereof or any
entity or officer exercising executive, legislative,
judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case
whether associated with a state of the United States,
the United States, or a foreign entity or government.
"Guarantors" means, at any date, the Domestic
Subsidiaries other than Miller Towing.
"Guarantors' Obligations" has the meaning ascribed
to such term in the Guaranty.
13<PAGE>
"Guaranty" means, collectively or individually as
the context may indicate, (i) each Guaranty Agreement
dated as of the Closing Date between one or more of the
Guarantors and the Agent, and (ii) any additional
Guaranty Agreements delivered to the Agent pursuant to
Section 8.19, in each case substantially in the form of
Exhibit F, as any such Guaranty Agreement may be
hereafter amended, supplemented or restated from time
to time.
"Hazardous Material" means and includes any
pollutant, contaminant, or hazardous, toxic or
dangerous waste, substance or material (including
without limitation petroleum products, asbestos-
containing materials and lead), the generation,
handling, storage, transportation, disposal, treatment,
release, discharge or emission of which is subject to
any Environmental Law.
"Immaterial Subsidiary" means any Subsidiary which
had less than $5,000,000 in total revenues for its most
recent fiscal year.
"Indebtedness" means with respect to any Person,
without duplication, all Indebtedness for Money
Borrowed, all indebtedness of such Person for the
acquisition of property or arising under Rate Hedging
Obligations, all indebtedness secured by any Lien on
the property of such Person whether or not such
indebtedness is assumed, all liability of such Person
by way of endorsements (other than for collection or
deposit in the ordinary course of business), all
Contingent Obligations, including letters of credit and
other items which in accordance with GAAP are required
to be classified as a liability on a balance sheet; but
excluding all accounts payable and accruals in the
ordinary course of business so long as payment therefor
is due within one year; provided that in no event shall
the term Indebtedness include surplus and retained
earnings, lease obligations (other than pursuant to
Capital Leases), reserves for deferred income taxes and
investment credits or other deferred credits or
reserves.
"Indebtedness for Money Borrowed" means with
respect to any Person, without duplication, all
indebtedness in respect of money borrowed, including
without limitation all Capital Leases and the deferred
purchase price of any property or asset, evidenced by a
promissory note, bond, debenture or similar written
obligation for the payment of money (including
conditional sales or similar title retention
agreements), and all obligations in respect of Off
Balance Sheet Liabilities, including but not limited to
the Bank America Lease Transaction, other than trade
payables and short-term accounts payable incurred in
the ordinary course of business.
"Interbank Offered Rate" means, for any Eurodollar
Rate Loan for any Interest Period therefor, the rate
per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750
(or any successor page) as the London interbank offered
rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to
such Interest Period. If for any reason such rate is
not available, the term "Interbank Offered Rate" shall
mean, for any Eurodollar Rate Loan for any Interest
Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank
offered rate for deposits in Dollars at approximately
14<PAGE>
11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable
to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page,
the applicable rate shall be the arithmetic mean of all
such rates (rounded upwards, if necessary, to the
nearest 1/100 of 1%).
"Interest Period" means, for each Eurodollar Rate
Loan, a period commencing on the date such Eurodollar
Rate Loan is made or Converted and ending, at the
Borrowers' option, on the date one, two, three or six
months thereafter as notified to the Agent by the
Authorized Representative three (3) Business Days prior
to the beginning of such Interest Period; provided,
that,
(i) if the Authorized Representative fails
to notify the Agent of the length of an Interest
Period three (3) Business Days prior to the first
day of such Interest Period, the Loan for which
such Interest Period was to be determined shall be
deemed to be a Base Rate Loan as of the first day
thereof;
(ii) if an Interest Period for a Eurodollar
Rate Loan would end on a day which is not a
Business Day, such Interest Period shall be
extended to the next Business Day (unless such
extension would cause the applicable Interest
Period to end in the succeeding calendar month, in
which case such Interest Period shall end on the
next preceding Business Day);
(iii) any Interest Period which begins on
the last Business Day of a calendar month (or on a
day for which there is no numerically
corresponding day in the calendar month at the end
of such Interest Period) shall end on the last
Business Day of a calendar month;
(iv) no Interest Period shall extend past
the Stated Termination Date; and
(v) there shall not be more than eight (8)
Interest Periods in effect on any day.
"Interest Rate Selection Notice" means the written
notice delivered by an Authorized Representative in
connection with the election of a subsequent Interest
Period for any Eurodollar Rate Loan or the Conversion
of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar
Rate Loan, in the form of Exhibit G.
"Issuing Bank" means initially NationsBank and
thereafter any Lender which is successor to NationsBank
as issuer of Letters of Credit under Article III.
"LC Account Agreement" means the LC Account
Agreement dated as of the Closing Date among the
15<PAGE>
Borrowers and the Issuing Bank substantially in the
form of Exhibit H, as such LC Account Agreement may be
hereafter amended, supplemented or restated from time
to time.
"Letter of Credit" means (i) a standby or
commercial letter of credit issued by the Issuing Bank
for the account of a Borrower in favor of a Person
advancing credit or securing an obligation on behalf of
such Borrower or (ii) any Existing Letter of Credit.
"Letter of Credit Commitment" means, with respect
to each Lender, the obligation of such Lender to
acquire Participations in respect of Letters of Credit
and Reimbursement Obligations up to an aggregate amount
at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of
Credit Commitment as the same may be increased or
decreased from time to time pursuant to this Agreement.
"Letter of Credit Facility" means the facility
described in Article III hereof providing for the
issuance by the Issuing Bank for the account of either
or both of the Borrowers of Letters of Credit in an
aggregate stated amount at any time outstanding not
exceeding the Total Letter of Credit Commitment.
"Letter of Credit Outstandings" means, as of any
date of determination, the aggregate amount remaining
undrawn under all Letters of Credit plus Reimbursement
Obligations then outstanding.
"Lien" means any interest in property securing any
obligation owed to, or a claim by, a Person other than
the owner of the property, whether such interest is
based on the common law, statute or contract, and
including but not limited to the lien or security
interest arising from a mortgage, encumbrance, pledge,
security agreement, conditional sale or trust receipt
or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, Miller
and any Subsidiary shall be deemed to be the owner of
any property which it has acquired or holds subject to
a conditional sale agreement, financing lease, or other
arrangement pursuant to which title to the property has
been retained by or vested in some other Person for
security purposes.
"Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility.
"Loan Documents" means this Agreement, the Notes,
the Guaranty, the Security Instruments, the
Applications and Agreements for Letter of Credit, and
all other instruments and documents heretofore or
hereafter executed or delivered to or in favor of any
Lender or the Agent in connection with the Loans made
and transactions contemplated under this Agreement, as
the same may be amended, supplemented or restated from
time to time.
"Loan Parties" means the Borrowers, the Guarantors
and any other Person (other than the Agent, the
Lenders, the Swing Line Lender and the Issuing Bank)
party to any of the Loan Documents.
16<PAGE>
"Material Adverse Effect" means a material adverse
effect on (i) the business, properties, prospects,
operations or condition, financial or otherwise, of
Miller and its Subsidiaries, taken as a whole, (ii) the
ability of the Loan Parties taken as a whole to pay or
perform the obligations, liabilities and indebtedness
under the Loan Documents as such payment or performance
becomes due in accordance with the terms thereof, or
(iii) the rights, powers and remedies of the Agent or
any Lender under any Loan Document or the validity,
legality or enforceability thereof.
"Material Contract" means any contract or
agreement, written or oral, of Miller or any of its
Subsidiaries the failure to comply with which could
reasonably be expected to have a Material Adverse
Effect.
"Material Foreign Subsidiary" means any Direct
Foreign Subsidiary which (i) has total assets equal to
or greater than 5% of the Consolidated Total Assets of
Miller and its Subsidiaries (calculated as of the end
of the most recent fiscal period for which financial
statements have been delivered to the Agent pursuant to
Section 8.1(a) or 8.1(b)) or (ii) has net income equal
to or greater than 5% of the Consolidated Net Income of
Miller and its Subsidiaries (calculated for the most
recent fiscal period for which financial statements
have been delivered pursuant to Section 8.1(a) or
8.1(b)).
"Miller Financial" means Miller Financial Services
Group, Inc., a Tennessee corporation and the direct
wholly-owned subsidiary of Miller.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan"
as defined in Section 4001(a)(3) of ERISA to which
Miller or any ERISA Affiliate is making, or is accruing
an obligation to make, contributions or has made, or
been obligated to make, contributions within the
preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations
issued by, and supported by the full taxing authority
of, any state of the United States of America or of any
municipal corporation or other public body organized
under the laws of any such state which are rated in the
highest investment rating category by both S&P and
Moody's.
"NationsBank" means NationsBank of Tennessee,
National Association and its successors.
"NMS" means NationsBanc Montgomery Securities LLC
and its successors.
"Negative Pledge Agreement" means, collectively or
individually as the context may indicate, (i) the
Negative Pledge Agreement dated as of the Closing Date
among the Borrowers, the Guarantors and the Agent, and
(ii) any additional Negative Pledge Agreements
17<PAGE>
delivered to the Agent pursuant to Section 8.19, in
each case substantially in the form of Exhibit I, as
any such Negative Pledge Agreement may be hereafter
amended, supplemented or restated from time to time.
"Net Proceeds" means (a) from any Equity Offering
or Debt Offering cash payments received by Miller or any
Subsidiary therefrom as and when received, net of (i) all bona
fide legal, accounting, banking and underwriting fees and
expenses, commissions, discounts and other issuance expenses
incurred in connection therewith and (ii) all taxes required to
be paid or accrued as a consequence of such issuance and (b) from
any Asset Disposition cash payments received by Miller or any
Subsidiary therefrom (including any cash payments received
pursuant to any note or other debt security received in
connection with any Asset Disposition) as and when received, net
of (i) all bona fide legal fees and expenses and other fees,
commissions and expenses paid to third parties and incurred in
connection therewith, (ii) all taxes required to be paid or
accrued as a consequence of such sale, (iii) amounts applied to
repayment of Indebtedness (other than the Obligations) secured by
a Lien on the asset or property disposed, and (iv) any other
necessary costs incurred in connection with the sale.
"Notes" means, collectively, the promissory notes
of the Borrowers evidencing Loans and Swing Line Loans
executed and delivered to the Lenders substantially in
the forms of Exhibits J-1 and J-2, respectively.
"Obligations" means the obligations, liabilities
and Indebtedness of the Borrowers or either of them
with respect to (i) the principal and interest on the
Loans and Swing Line Loans as evidenced by the Notes,
(ii) the Reimbursement Obligations and otherwise in
respect of the Letters of Credit, (iii) all liabilities
of the Borrowers or either of them to any Lender which
arise under a Swap Agreement, and (iv) the payment and
performance of all other obligations, liabilities and
Indebtedness of the Borrowers or either of them to the
Lenders, the Swing Line Lender, the Issuing Bank, the
Agent or NMS hereunder, under any one or more of the
other Loan Documents or with respect to the Loans, the
Swing Line Loans or the Letters of Credit.
"Off Balance Sheet Liability" of a Person means
(i) any repurchase obligation or liability of such
Person with respect to accounts or notes receivable
sold by such Person, (ii) any liability under any sale
and leaseback transaction which does not create a
liability on the balance sheet of such Person, (iii)
any liability under any financing lease or so-called
"synthetic lease" transaction entered into by such
Person or (iv) any obligation arising with respect to
any other transaction which is the functional
equivalent of or takes the place of borrowing but which
does not constitute a liability on the balance sheet of
such Person, but excluding operating leases.
"Operating Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership, or other legally
authorized incorporated or unincorporated entity, the bylaws,
operating agreement, partnership agreement, limited partnership
agreement or other applicable documents relating to the
operation, governance or management of such entity.
18<PAGE>
"Organizational Action" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally
authorized incorporated or unincorporated entity, any corporate,
organizational or partnership action (including any required
shareholder, member or partner action) or other similar official
action, as applicable, taken by such entity.
"Organizational Documents" means with respect to
any corporation, limited liability company, partnership,
limited partnership, limited liability partnership or other
legally authorized incorporated or unincorporated entity,
the articles of incorporation, certificate of incorporation,
articles of organization, certificate of limited partnership or
other applicable organizational or charter documents
relating to the creation of such entity.
"Outstandings" means, collectively, at any date,
the Letter of Credit Outstandings, the Swing Line
Outstandings and the Revolving Credit Outstandings on
such date.
"Partially-Owned Subsidiary" has the meaning
assigned to such term in the definition of "Permitted
Acquisition" in Section 1.1.
"Participation" means, (i) with respect to any
Lender (other than the Issuing Bank) in connection with
a Letter of Credit, the extension of credit represented
by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of
Credit and any Reimbursement Obligation arising with
respect thereto issued by the Issuing Bank in
accordance with the terms hereof and (ii) with respect
to any Lender (other than the Swing Line Lender) in
connection with a Swing Line Loan, the extension of
credit represented by the participation of such Lender
hereunder in the liability of the Swing Line Lender in
respect of a Swing Line Loan made by the Swing Line
Lender in accordance with the terms hereof.
"PBGC" means the Pension Benefit Guaranty
Corporation and any successor thereto.
"Pension Plan" means any employee pension benefit
plan within the meaning of Section 3(2) of ERISA, other
than a Multiemployer Plan, which is subject to the
provisions of Title IV of ERISA or Section 412 of the
Code and which (i) is maintained for employees of
Miller or any of its ERISA Affiliates or is assumed by
Miller or any of its ERISA Affiliates in connection
with any Acquisition or (ii) has at any time been
maintained for the employees of Miller or any current
or former ERISA Affiliate.
"Permitted Acquisition" means an Acquisition
beyond the normal course of business effected with the
consent and approval of the board of directors or other
applicable governing body of the Person being acquired,
and with the duly obtained approval of such
shareholders or other holders of equity interest as
such Person may be required to obtain, so long as
(i) immediately prior to and immediately after the
19<PAGE>
consummation of such Acquisition, no Default or Event
of Default has occurred and is continuing, (ii)
substantially all of the sales and operating profits
generated by such Person (or assets) so acquired or
invested are derived from the same or related line or
lines of business as then conducted by Miller and its
Subsidiaries, (iii) the Cost of Acquisition with
respect to such Acquisition does not exceed
$10,000,000; and (iv) in the case of an Acquisition for
which the Cost of Acquisition, together with the value
of any capital stock (or warrants or options to acquire
capital stock) of Miller or any Subsidiary to be
transferred as consideration in such Acquisition, is
greater than or equal to $5,000,000, pro forma
historical financial statements as of the end of the
most recently completed Four-Quarter Period giving
effect to such Acquisition are delivered to the Agent
not less than five (5) Business Days prior to the
consummation of such Acquisition, together with a
certificate of an Authorized Representative
demonstrating compliance with the financial covenants
set forth in Article IX hereof after giving effect to
such Acquisition. Notwithstanding the foregoing, in no
event shall any acquisition of less than 100% of the
equity interest of another Person (other than
directors' qualifying shares) constitute a Permitted
Acquisition hereunder without the prior written consent
of the Required Lenders; provided that an acquisition
of 100% of the equity interest of another Person (A) in
which (x) such other Person owns less than 100% of
another Person (a "Partially-Owned Subsidiary") and (y)
the amount of the net book value of the total assets of
such Partially-Owned Subsidiary, when aggregated with
the net book value of total assets of other Partially-
Owned Subsidiaries, does not exceed 1% of Consolidated
Total Assets, and (B) which otherwise qualifies as a
Permitted Acquisition, will not require the foregoing
written consent of the Required Lenders. For purposes
of determining the value of capital stock in clause
(iv) above, (A) the capital stock of Miller shall be
valued (I) at its market value as reported on the New
York Stock Exchange or any other national securities
exchange or the Nasdaq National Market with respect to
shares that are freely tradeable, and (II) with respect
to shares that are not freely tradeable, as determined
by the Board of Directors of Miller, (B) the capital
stock of any Subsidiary shall be valued as determined
by the Board of Directors of such Subsidiary, and (C)
with respect to any Acquisition accomplished pursuant
to the exercise of options or warrants or the
conversion of securities, such value shall include both
the cost of acquiring such option, warrant or
convertible security as well as the cost of exercise or
conversion.
"Permitted Indebtedness" has the meaning assigned
to such term in Section 9.4 hereof.
"Permitted Liens" has the meaning assigned to such
term in Section 9.3 hereof.
"Person" means an individual, partnership,
corporation, trust, limited liability company,
unincorporated organization, association, joint venture
or a government or agency or political subdivision
thereof.
"Pledge Agreement" means, collectively or
individually as the context may indicate, (i) that
certain Stock Pledge Agreement dated as of the Closing
Date between Miller and the Agent substantially in the
form of Exhibit K-1 hereto, (ii) that certain Stock
Pledge Agreement dated as of the Closing Date between
certain Domestic Subsidiaries and the Agent
substantially in the form of Exhibit K-2 hereto, (iii)
any Pledge Agreement, Share Charge, Debenture or
similar instrument in form and substance reasonably
acceptable to the Agent whereby Miller or a Domestic
20<PAGE>
Subsidiary creates a security interest in favor of the
Agent of not less than 65% of the outstanding capital
stock of a Direct Foreign Subsidiary, and (iv) any
additional Pledge Agreement delivered to the Agent
pursuant to Section 8.19, as any of the foregoing may
be hereafter amended, supplemented or restated from
time to time.
"Pledged Stock" has the meaning assigned to such
term in any Pledge Agreement.
"Pre-Refunded Municipal Obligations" means
obligations of any state of the United States of
America or of any municipal corporation or other public
body organized under the laws of any such state which
are rated, based on the escrow, in the highest
investment rating category by both S&P and Moody's and
which have been irrevocably called for redemption and
advance refunded through the deposit in escrow of
Government Securities or other debt securities which
are (i) not callable at the option of the issuer
thereof prior to maturity, (ii) irrevocably pledged
solely to the payment of all principal and interest on
such obligations as the same becomes due, and (iii) in
a principal amount and bear such rate or rates of
interest as shall be sufficient to pay in full all
principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a
nationally recognized firm of certified public
accountants.
"Prime Rate" means the per annum rate of interest
established from time to time by NationsBank as its
prime rate, which rate may not be the lowest rate of
interest charged by NationsBank to its customers.
"Principal Office" means the principal office of
NationsBank located at NationsBank, National
Association, Independence Center, 15th Floor, NC1-001-
15-04, Charlotte, North Carolina 28255, Attention:
Agency Services, or such other office and address as
the Agent may from time to time designate.
"Rate Hedging Obligations" means any and all
obligations of Miller or any Subsidiary, whether
absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect
at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets,
liabilities or exchange transactions, including, but
not limited to, Dollar-denominated or cross-currency
interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or
interest rate options, puts, warrants and those
commonly known as interest rate "swap" agreements; and
(ii) any and all cancellations, buybacks, reversals,
terminations or assignments of any of the foregoing.
"Regulation D" means Regulation D of the Board as
the same may be amended or supplemented from time to time.
"Reimbursement Obligation" shall mean, at any
time, the obligation of the Borrowers or either of them
with respect to any Letter of Credit to reimburse the
Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by
21<PAGE>
the Issuing Bank of proceeds of Loans pursuant to
Section 3.2) for amounts theretofore paid by the
Issuing Bank pursuant to a drawing under such Letter of
Credit.
"Repurchase Agreement" means a repurchase
agreement entered into with any financial institution
whose debt obligations or commercial paper are rated
"A" by either of S&P or Moody's or "A-1" by S&P or "P-
1" by Moody's.
"Required Lenders" means, as of any date, any
three Lenders on such date having Credit Exposures (as
defined below) aggregating in excess of 50% of the
aggregate Credit Exposures of all Lenders on such date.
For purposes of the preceding sentence, the amount of
the "Credit Exposure" of each Lender shall be equal to
the aggregate principal amount of the Loans owing to
such Lender plus the amount of such Lender's Applicable
Commitment Percentage of Letter of Credit Outstandings
and Swing Line Outstandings plus the aggregate
unutilized amounts of such Lender's Revolving Credit
Commitment (after accounting for such Lender's
Applicable Commitment Percentage of any Letter of
Credit Outstandings and any Swing Line Outstandings);
provided that, (i) if any Lender with a Revolving
Credit Commitment shall have failed to pay to the
Issuing Bank its Applicable Commitment Percentage of
any drawing under any Letter of Credit resulting in an
outstanding Reimbursement Obligation, such Lender's
Credit Exposure attributable to Letters of Credit
Outstandings shall be deemed to be held by the Issuing
Bank for purposes of this definition and (ii) if any
Lender shall have failed to pay to the Swing Line
Lender its Applicable Commitment Percentage of any
Swing Line Loan, such Lender's Credit Exposure
attributable to all Swing Line Outstandings shall be
deemed to be held by the Swing Line Lender for purposes
of this definition.
"Reserve Requirement" means, at any time, the
maximum rate at which reserves (including, without limitation,
any marginal, special, supplemental or emergency reserves) are
required to be maintained under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or
any successor) by member banks of the Federal Reserve System
against, in the case of Eurodollar Rate Loans, "Eurocurrency
liabilities" (as such term is used in Regulation D). Without
limiting the effect of the foregoing, the Reserve Requirement
shall reflect any other reserves required to be maintained by
such member banks with respect to (i) any category of liabilities
which includes deposits by reference to which the Eurodollar Rate
is to be determined, or (ii) any category of extensions of credit
or other assets which include Eurodollar Rate Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Restricted Payment" means (a) any dividend or
other distribution, direct or indirect, on account of
any shares of any class of stock or equity securities
of Miller or any of its Subsidiaries (other than those
payable or distributable solely to Miller or to a
Subsidiary's parent) now or hereafter outstanding,
except a dividend payable solely in shares of a class
of stock to the holders of that class; (b) any
redemption, conversion, exchange, retirement or similar
payment, purchase or other acquisition for value,
direct or indirect, of any shares of any class of stock
or other equity security of Miller or any of its
Subsidiaries (other than those payable or distributable
solely to Miller, Miller Towing or a Guarantor) now or
hereafter outstanding; (c) any payment (other than to
Miller, Miller Towing or a Guarantor) made to retire,
or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of
22<PAGE>
any class of stock or other equity security of Miller
or any of its Subsidiaries now or hereafter
outstanding; and (d) any issuance and sale of capital
stock or other equity security of any Subsidiary of
Miller (or any option, warrant or right to acquire such
stock or other equity securities) other than the
issuance and sale by Miller Towing or a Guarantor to
Miller or a Domestic Subsidiary.
"Revolving Credit Commitment" means, with respect
to each Lender, the obligation of such Lender to make Loans to
the Borrowers up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment
Percentage of the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility
described in Article II hereof providing for Loans to
the Borrowers by the Lenders at any time outstanding up
to the aggregate principal amount of the Total
Revolving Credit Commitment.
"Revolving Credit Outstandings" means, as of any
date of determination, the aggregate principal amount
of all Loans then outstanding and all interest accrued
thereon.
"Revolving Credit Termination Date" means (i) the
Stated Termination Date or (ii) such earlier date of
termination of Lenders' obligations pursuant to Section
10.1 upon the occurrence of an Event of Default, or
(iii) such earlier date as the Borrowers may
voluntarily and permanently terminate the Revolving
Credit Facility by payment in full of all Revolving
Credit Outstandings, Swing Line Outstandings and Letter
of Credit Outstandings, together with all accrued and
unpaid interest thereon (except for such Letter of
Credit Outstandings that have been fully cash
collateralized pursuant to the terms of the LC Account
Agreement), the Revolving Credit Commitment and the
Letter of Credit Commitment shall have terminated or
expired, and the Borrowers shall have fully, finally
and irrevocably paid and satisfied all Obligations.
"S&P" means Standard & Poor's Ratings Group, a
division of The McGraw-Hill Companies, Inc.
"Security Instruments" means the Pledge Agreement,
the Collateral Assignment of Partnership Interests, the
Negative Pledge Agreement, the LC Account Agreement and
all other documents and agreements executed and
delivered in connection herewith granting to the
Lenders Liens on any assets of the Borrowers, any
Guarantor, or any other Person collaterally to secure
payment and performance of the Obligations and the
Guarantors' Obligations under the Guaranty.
"Single Employer Plan" means any employee pension
benefit plan covered by Title IV of ERISA in respect of
which Miller or any Subsidiary is an "employer" as
described in Section 4001(b) of ERISA and which is not
a Multiemployer Plan.
23<PAGE>
"Solvent" means, when used with respect to any
Person, that at the time of determination:
(i) the fair value of its assets (both at
fair valuation and at present fair saleable value
on an orderly basis) is in excess of the total
amount of its liabilities, including Contingent
Obligations;
(ii) it is then able and expects to be able
to pay its debts as they mature; and
(iii) it has capital sufficient to carry on
its business as conducted and as proposed to be
conducted.
"Stated Termination Date" means February 1, 2001,
or such later date as the parties may agree pursuant to
Section 2.13.
"Subordinated Indebtedness" means all Indebtedness
that is subordinated to the Revolving Credit Facility
under its own terms or under any separate agreement of
subordination, in each case upon terms satisfactory to
the Agent.
"Subsidiary" means any corporation or other entity
in which more than 50% of its outstanding voting stock
or more than 50% of all equity interests is owned
directly or indirectly by Miller and/or by one or more
of Miller's Subsidiaries or is otherwise required under
GAAP to have its financial statements consolidated with
those of Miller and its Subsidiaries.
"Swap Agreement" means one or more agreements
between the Borrowers and any Lender with respect to
Indebtedness evidenced by any or all of the Notes, on
terms mutually acceptable to the Borrowers and such
Lender and the Agent, which agreements create Rate
Hedging Obligations.
"Swing Line" means the revolving line of credit
established by the Swing Line Lender in favor of the
Borrowers pursuant to Section 2.14.
"Swing Line Lender" means initially NationsBank as
the lender of Swing Line Loans under Section 2.14 and
thereafter any lender which is successor to NationsBank
as the Lender of Swing Line Loans under Section 2.14.
"Swing Line Loans" means loans made by the Swing
Line Lender to a Borrower pursuant to Section 2.14.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all
Swing Line Loans then outstanding.
24
<PAGE>
"Termination Event" means: (i) a "Reportable
Event" described in Section 4043 of ERISA and the
regulations issued thereunder (unless the notice
requirement has been waived by applicable regulation);
or (ii) the withdrawal of Miller or any ERISA Affiliate
from a Pension Plan during a plan year in which it was
a "substantial employer" as defined in Section
4001(a)(2) of ERISA or was deemed such under Section
4068(f) of ERISA; or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a
Pension Plan or the treatment of a Pension Plan
amendment as a termination under Section 4041 of ERISA;
or (iv) the institution of proceedings to terminate a
Pension Plan by the PBGC; or (v) any other event or
condition which would constitute grounds under Section
4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension
Plan; or (vi) the partial or complete withdrawal of
Miller or any ERISA Affiliate from a Multiemployer
Plan; or (vii) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA; or
(viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan
under Section 4241 or Section 4245 of ERISA,
respectively; or (ix) any event or condition which
results in the termination of a Multiemployer Plan
under Section 4041A of ERISA or the institution by the
PBGC of proceedings to terminate a Multiemployer Plan
under Section 4042 of ERISA; or (x) any event or
condition with respect to any Employee Benefit Plan
that is regulated by any Foreign Benefit Law that
results in such Employee Benefit Plan's termination or
the revocation of the Employee Benefit Plan's authority
to operate under the applicable Foreign Benefit Law.
"Total Letter of Credit Commitment" means an
amount not to exceed $5,000,000.
"Total Revolving Credit Commitment" means a
principal amount equal to $150,000,000, as reduced from
time to time in accordance with Section 2.7.
"Type" shall mean any type of Loan (i.e., a Base
Rate Loan or a Eurodollar Rate Loan).
"Voting Stock" means shares of capital stock
issued by a corporation, or equivalent interests in any
other Person, the holders of which are ordinarily, in
the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar
functions) of such Person, even if the right so to vote
has been suspended by the happening of such a
contingency.
1.2. Rules of Interpretation.
(a) All accounting terms not specifically defined
herein shall have the meanings assigned to such terms
and shall be interpreted in accordance with GAAP
applied on a Consistent Basis.
(b) Each term defined in the Georgia Uniform
Commercial Code shall have the meaning given therein
unless otherwise defined herein, except to the extent
that the Uniform Commercial Code of another
jurisdiction is controlling, in which case such terms
shall have the meaning given in the Uniform Commercial
Code of the applicable jurisdiction.
25<PAGE>
(c) The headings, subheadings and table of
contents used herein or in any other Loan Document are
solely for convenience of reference and shall not
constitute a part of any such document or affect the
meaning, construction or effect of any provision
thereof.
(d) Except as otherwise expressly provided,
references herein to articles, sections, paragraphs,
clauses, annexes, appendices, exhibits and schedules
are references to articles, sections, paragraphs,
clauses, annexes, appendices, exhibits and schedules in
or to this Agreement.
(e) All definitions set forth herein or in any
other Loan Document shall apply to the singular as well
as the plural form of such defined term, and all
references to the masculine gender shall include
reference to the feminine or neuter gender, and vice
versa, as the context may require.
(f) When used herein or in any other Loan
Document, words such as "hereunder", "hereto", "hereof"
and "herein" and other words of like import shall,
unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not
to any particular article, section, subsection,
paragraph or clause thereof.
(g) References to "including" means including
without limiting the generality of any description
preceding such term, and for purposes hereof the rule
of ejusdem generis shall not be applicable to limit a
general statement, followed by or referable to an
enumeration of specific matters, to matters similar to
those specifically mentioned.
(h) All dates and times of day specified herein
shall refer to such dates and times at Charlotte, North
Carolina.
(i) Each of the parties to the Loan Documents and
their counsel have reviewed and revised, or requested
(or had the opportunity to request) revisions to, the
Loan Documents, and any rule of construction that
ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and
interpretation of the Loan Documents and all exhibits,
schedules and appendices thereto.
(j) Any reference to an officer of Miller or any
other Person by reference to the title of such officer
shall be deemed to refer to each other officer of such
Person, however titled, exercising the same or
substantially similar functions.
(k) All references to any agreement or document
as amended, modified or supplemented, or words of
similar effect, shall mean such document or agreement,
as the case may be, as amended, modified or
supplemented from time to time only as and to the
extent permitted therein and in the Loan Documents.
26<PAGE>
ARTICLE II
The Revolving Credit Facility
-----------------------------
2.1. REVOLVING LOANS.
(a) COMMITMENT. Subject to the terms and conditions
of this Agreement, each Lender severally agrees to make Advances
to the Borrowers under the Revolving Credit Facility from time to
time from the Closing Date until the Revolving Credit Termination
Date on a pro rata basis as to the total borrowing requested by
the Borrowers on any day determined by such Lender's Applicable
Commitment Percentage up to but not exceeding the Revolving
Credit Commitment of such Lender, provided, however, that the
Lenders will not be required and shall have no obligation to make
any such Advance (i) so long as a Default or an Event of Default
has occurred and is continuing or (ii) if the Agent has
accelerated the maturity of any of the Notes as a result of an
Event of Default; provided further, however, that immediately
after giving effect to each such Advance, the principal amount of
Revolving Credit Outstandings plus Letter of Credit Outstandings
plus Swing Line Outstandings shall not exceed the Total Revolving
Credit Commitment. Within such limits, the Borrowers may borrow,
repay and reborrow under the Revolving Credit Facility on a
Business Day from the Closing Date until, but (as to borrowings
and reborrowings) not including, the Revolving Credit Termination
Date; provided, however, that (A) no Eurodollar Rate Loan shall
be made which has an Interest Period that extends beyond the
Stated Termination Date and (B) each Eurodollar Rate Loan may,
subject to the provisions of Sections 2.7 and 2.3(b), be repaid
only on the last day of the Interest Period with respect thereto
unless such payment is accompanied by the additional payment, if
any, required by Section 5.5.
(b) AMOUNTS. The aggregate unpaid principal amount of
the Revolving Credit Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings shall not exceed at any
time the Total Revolving Credit Commitment. In the event there
shall be outstanding any such excess, the Borrowers shall
immediately make such payments and prepayments as shall be
necessary to comply with this Section 2.1(b). Each Loan
hereunder, other than Base Rate Refunding Loans, and each
Conversion under Section 2.8, shall be in an amount of at least
$2,000,000, and, if greater than $2,000,000, an integral multiple
of $1,000,000.
(c) ADVANCES AND RATE SELECTION. (i) An Authorized
Representative shall give the Agent (A) at least three (3)
Business Days' irrevocable telephonic notice of a borrowing
request, followed promptly by telefacsimile transmission of a
Borrowing Notice or Interest Rate Selection Notice (as
applicable) with appropriate insertions, of each Loan that is a
Eurodollar Rate Loan (whether representing an additional
borrowing hereunder or the Conversion of a borrowing hereunder)
prior to 11:00 A.M. and (B) irrevocable telephonic notice of a
borrowing request, followed promptly by telefacsimile
transmission of a Borrowing Notice or Interest Rate Selection
Notice (as applicable) with appropriate insertions, of each Loan
(other than Base Rate Refunding Loans to the extent the same are
effected without notice pursuant to Section 2.1(c)(iv)) that is a
Base Rate Loan (whether representing an additional borrowing
hereunder or the Conversion of borrowing hereunder) prior to
11:00 A.M., in each case on the day of such proposed Loan. Each
27<PAGE>
such notice shall specify the amount of the borrowing, the Type
of Loan (Base Rate or Eurodollar Rate), the date of borrowing
and, if a Eurodollar Rate Loan, the Interest Period to be used in
the computation of interest. Notice of receipt of such
Borrowing Notice or Interest Rate Selection Notice, as the case
may be, together with the amount of each Lender's portion of an
Advance requested, Continued, or Converted thereunder, shall be
promptly provided by the Agent to each Lender by telefacsimile
transmission, but (provided the Agent shall have received such
notice by 11:00 A.M.) not later than 1:00 P.M. on the same day as
the Agent's receipt of such notice.
(ii) Not later than 2:00 P.M. on the date specified for
each borrowing under this Section 2.1, each Lender shall,
pursuant to the terms and subject to the conditions of this
Agreement, make the amount of the Advance or Advances to be made
by it on such day available by wire transfer to the Agent in the
amount of its pro rata share, determined according to such
Lender's Applicable Commitment Percentage of the Loan or Loans to
be made on such day. Such wire transfer shall be directed to the
Agent at the Principal Office and shall be in the form of Dollars
constituting immediately available funds. The amount so received
by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrowers by delivery of the
proceeds thereof to the Borrowers' Account or otherwise as shall
be directed in the applicable Borrowing Notice by the Authorized
Representative and reasonably acceptable to the Agent.
(iii) The Borrowers shall have the option to elect
the duration of the initial and any subsequent Interest Periods
and to Continue or Convert the Loans in accordance with Section
2.8. Eurodollar Rate Loans and Base Rate Loans may be
outstanding at the same time, provided, however, there shall not
be outstanding at any one time Eurodollar Rate Loans having more
than eight (8) different Interest Periods. If the Agent does not
receive a Borrowing Notice or an Interest Rate Selection Notice
giving notice of election of the duration of an Interest Period
or of Conversion of any Loan to or Continuation of a Loan as a
Eurodollar Rate Loan by the time prescribed by Section 2.1(c) or
2.8, the Borrowers shall be deemed to have elected to Convert
such Loans to (or continue such Loan as) a Base Rate Loan until
the Borrowers notify the Agent in accordance with Section 2.8.
(iv) Notwithstanding the foregoing, if a drawing is
made under any Letter of Credit, such drawing is honored by the
Issuing Bank prior to the Stated Termination Date, and the
applicable Borrower or Borrowers shall not immediately fully
reimburse the Issuing Bank in respect of such drawing, (A)
provided that the conditions to making a Loan as herein provided
shall then be satisfied, the Reimbursement Obligation arising
from such drawing shall be paid to the Issuing Bank by the Agent
without the requirement of notice to or from the applicable
Borrower or Borrowers from immediately available funds which
shall be advanced as a Base Rate Refunding Loan by each Lender
under the Revolving Credit Facility in an amount equal to such
Lender's Applicable Commitment Percentage of such Reimbursement
Obligation, and (B) if the conditions to making a Loan as herein
provided shall not then be satisfied, each of the Lenders shall
fund by payment to the Agent (for the benefit of the Issuing
Bank) in immediately available funds the purchase from the
Issuing Bank of their respective Participations in the related
Reimbursement Obligation based on their respective Applicable
Commitment Percentages of the Total Letter of Credit Commitment.
28<PAGE>
If a drawing is presented under any Letter of Credit in
accordance with the terms thereof and the applicable Borrower or
Borrowers shall not immediately reimburse the Issuing Bank in
respect thereof, then notice of such drawing or payment shall be
provided promptly by the Issuing Bank to the Agent and the Agent
shall promptly provide notice to each Lender by telephone or
telefacsimile transmission. If notice to the Lenders of a
drawing under any Letter of Credit is given by the Agent at or
before 1:00 p.m. any Business Day, each Lender shall, pursuant to
the conditions specified in this Section 2.1(c)(iv), either make
a Base Rate Refunding Loan or fund the purchase of its
Participation in the amount of such Lender's Applicable
Commitment Percentage of such drawing or payment and shall pay
such amount to the Agent for the account of the Issuing Bank at
the Principal Office in Dollars and in immediately available
funds before 2:00 P.M. on the same Business Day. If notice to
the Lenders of a drawing under a Letter of Credit is given by the
Agent after 1:00 p.m. on any Business Day, each Lender shall,
pursuant to the conditions specified in this Section 2.1(c)(iv),
either make a Base Rate Refunding Loan or fund the purchase of
its Participation in the amount of such Lender's Applicable
Commitment Percentage of such drawing or payment and shall pay
such amount to the Agent for the account of the Issuing Bank at
the Principal Office in Dollars and in immediately available
funds before 12:00 noon on the next following Business Day. Any
such Base Rate Refunding Loan shall be advanced as, and shall
continue as, a Base Rate Loan unless and until the applicable
Borrower or Borrowers shall Convert such Base Rate Loan in
accordance with the terms of Section 2.8.
2.2. PAYMENT OF INTEREST. (a) The Borrowers shall pay
interest to the Agent for the account of each Lender on the
outstanding and unpaid principal amount of each Loan made by such
Lender for the period commencing on the date of such Loan until
such Loan shall be due, at the then applicable Base Rate for Base
Rate Loans or applicable Eurodollar Rate for Eurodollar Rate
Loans, as designated by the Authorized Representative pursuant to
Section 2.1; provided, however, that if any amount shall not be
paid when due (at maturity, by acceleration or otherwise), all
amounts outstanding thereunder shall bear interest thereafter at
the Default Rate.
(b) Interest on each Eurodollar Rate Loan shall be
computed on the basis of a year of 360 days and interest on each
Base Rate Loan shall be computed on the basis of a year of
365/366 days, and in each case shall be calculated for the actual
number of days elapsed. Interest on each Loan shall be paid
(i) quarterly in arrears on the last Business Day of each March,
June, September and December, commencing March 31, 1998 for each
Base Rate Loan, (ii) on the last day of the applicable Interest
Period for each Eurodollar Rate Loan and, if such Interest Period
extends for more than three months, at intervals of three months
after the first day of such Interest Period, and (iii) upon
payment in full of the principal amount of such Loan.
2.3. PAYMENT OF PRINCIPAL.
(a) MANNER OF PAYMENT. The principal amount of
the Revolving Credit Outstandings shall be due and payable to the
Agent for the benefit of each Lender in full on the Revolving
Credit Termination Date, or earlier as specifically provided
herein. The principal amount of any Base Rate Loan may be
prepaid in whole or in part at any time. Other than prepayments
29<PAGE>
made pursuant to Section 2.3(b), the principal amount of any
Eurodollar Rate Loan may be prepaid only at the end of the
applicable Interest Period unless the Borrowers shall pay to the
Agent for the account of the Lenders the additional amount, if
any, required under Section 5.5. All prepayments of Loans made by
the Borrowers shall be in the amount of $2,000,000 or such
greater amount which is an integral multiple of $1,000,000, or
the amount equal to all Revolving Credit Outstandings, or such
other amount as necessary to comply with Section 2.1(b) , Section
2.3(b) or Section 2.7.
(b) MANDATORY PREPAYMENTS. The Borrowers shall
make the following required prepayments, each such payment to be
made to the Agent for the benefit of the Lenders within the time
period specified below:
(i) EQUITY OFFERINGS. Miller shall make, or
shall cause each applicable Subsidiary to make, a
prepayment from the Net Proceeds of any Equity Offering
in an amount equal to 50% of such Net Proceeds. Each
such prepayment shall be made within five (5) Business
Days of receipt of such Net Proceeds and upon not less
than three (3) Business Days' written notice to the
Agent, and shall include within one (1) Business Day of
repayment a certificate of an Authorized Representative
setting forth in reasonable detail the calculations
utilized in computing the amount of the Net Proceeds.
(ii) DEBT OFFERINGS. Miller shall make, or
shall cause each applicable Subsidiary to make, a
prepayment from the Net Proceeds of any Debt Offering
in an amount equal to 100% of such Net Proceeds. Each
such prepayment shall be made within five (5) Business
Days of receipt of such Net Proceeds and upon not less
than three (3) Business Days' written notice to the
Agent, and shall include within one (1) Business Day of
repayment a certificate of an Authorized Representative
setting forth in reasonable detail the calculations
utilized in computing the amount of the Net Proceeds.
(iii) ASSET DISPOSITIONS. Miller shall
make, or shall cause each applicable Subsidiary to
make, a prepayment from the Net Proceeds of any Asset
Disposition in an amount equal to 100% of such Net
Proceeds. Each such prepayment shall be made within
five (5) Business Days of receipt of such Net Proceeds
and upon not less than three (3) Business Days' written
notice to the Agent, which notice shall include a
certificate of an Authorized Representative setting
forth in reasonable detail the calculations utilized in
computing the amount of the Net Proceeds.
Notwithstanding the foregoing, Miller shall not be
required to make a prepayment in connection with an
Asset Disposition unless either (A) the Net Proceeds of
such Asset Disposition exceed $250,000, or (B) the Net
Proceeds of such Asset Disposition, when aggregated
with the Net Proceeds of all Asset Dispositions during
such Fiscal Year which were not applied as a prepayment
as a result of clause (A), exceed $1,000,000.
All mandatory prepayments made pursuant to this Section
2.3(b) shall be applied to the principal remaining outstanding
under the Revolving Credit Facility (as adjusted to give effect
to any prior payments or prepayments of principal). In addition,
the Total Revolving Credit Commitment shall be permanently
reduced in accordance with Section 2.7 hereof by the amount
determined pursuant to the provisions of (i), (ii) or (iii) above
which is required as a mandatory prepayment (even if such amount
is greater than the actual principal amounts outstanding under
the Revolving Credit Facility).
30<PAGE>
2.4. NON-CONFORMING PAYMENTS. (a) Each payment of
principal (including any prepayment) and payment of interest and
fees, and any other amount required to be paid to the Lenders
with respect to the Loans, shall be made to the Agent at the
Principal Office, for the account of each Lender, in Dollars and
in immediately available funds before 12:30 P.M. on the date such
payment is due. The Borrowers shall give the Agent prior written
notice of any payment of principal, which notice shall specify
(i) the date the payment will be made and (ii) the Loan to which
payment relates and which notice shall be given prior to 11:00
A.M. (A) in the case of Eurodollar Rate Loans, on the third
Business Day preceding the payment and (B) in the case of Base
Rate Loans, on the date of such payment. The Agent may, at the
election of the Borrowers, but shall not be obligated to, debit
the amount of any such payment which is not made by such time to
any ordinary deposit account, if any, of any of the Borrowers
with the Agent.
(b) The Agent shall deem any payment made by or on
behalf of the Borrowers hereunder that is not made both (i) in
Dollars and in immediately available funds and (ii) prior to
12:30 P.M. on the date payment is due to be a non-conforming
payment. Any such payment shall not be deemed to be received by
the Agent until the later of (A) the time such funds become
available funds and (B) the next Business Day. Any non-
conforming payment shall constitute a Default or Event of
Default. The Agent shall give prompt telephonic or telefacsimile
notice to the Borrowers if a non-conforming payment constitutes a
Default or an Event of Default. Interest shall continue to
accrue on any principal as to which a non-conforming payment is
made until the later of (x) the date such funds become available
funds or (y) the next Business Day at the Default Rate from the
date such amount was due and payable.
(c) In the event that any payment hereunder or under
the Notes becomes due and payable on a day other than a Business
Day, then such due date shall be extended to the next succeeding
Business Day unless provided otherwise under clause (ii) of the
definition of "Interest Period"; provided that interest shall
continue to accrue during the period of any such extension.
2.5. NOTES. Loans made by each Lender shall be
evidenced by a Note in substantially the form of Exhibit J-1
payable to the order of such Lender in the respective amount of
its Applicable Commitment Percentage of the Total Revolving
Credit Commitment, which Note shall be dated the Closing Date or
a later date pursuant to an Assignment and Acceptance and shall
be duly completed, executed and delivered by the Borrowers.
2.6. PRO RATA PAYMENTS. Except as otherwise provided
herein, (a) each payment on account of the principal of and
interest on the Loans and the fees described in Section 2.10
shall be made to the Agent for the account of the Lenders pro
rata based on their Applicable Commitment Percentages, (b) all
payments to be made by the Borrowers for the account of each of
the Lenders on account of principal, interest and fees, shall be
made without diminution, setoff, recoupment or counterclaim, and
(c) the Agent will promptly distribute to the Lenders in
immediately available funds payments received in fully collected,
immediately available funds from the Borrowers.
2.7. VOLUNTARY COMMITMENT REDUCTIONS. The Borrowers
shall, by notice from an Authorized Representative, have the
right from time to time but not more frequently than once each
calendar month, upon not less than three (3) Business Days'
written notice to the Agent, effective upon receipt, to reduce
the Total Revolving Credit Commitment. The Agent shall give each
31<PAGE>
Lender, within one (1) Business Day of receipt of such notice,
telefacsimile notice or telephonic notice (confirmed in writing)
of such reduction. Each such reduction shall be in the aggregate
amount of $2,000,000 or such greater amount which is in an
integral multiple of $1,000,000, or the entire remaining Total
Revolving Credit Commitment, and shall permanently reduce the
Total Revolving Credit Commitment and the Revolving Credit
Commitment of each Lender pro rata. Each reduction of the Total
Revolving Credit Commitment shall be accompanied by payment of
the Loans to the extent that the principal amount of Revolving
Credit Outstandings plus Letter of Credit Outstandings plus Swing
Line Outstandings exceeds the Total Revolving Credit Commitment
after giving effect to such reduction, together with accrued and
unpaid interest on the amounts prepaid. No such repayment or
reduction shall result in the payment of any Eurodollar Rate Loan
other than on the last day of the Interest Period of such
Eurodollar Rate Loan unless such prepayment is accompanied by
amounts due, if any, under Section 5.5.
2.8. CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST
PERIODS. Subject to the limitations set forth below and in
Article V, the Borrowers may:
(a) upon delivery, effective upon receipt, of a
properly completed Interest Rate Selection Notice to the Agent on
or before 11:00 A.M. on any Business Day, Convert all or a part
of Eurodollar Rate Loans to Base Rate Loans on the last day of
the Interest Period for such Eurodollar Rate Loans; and
(b) provided that no Default or Event of Default shall
have occurred and be continuing, upon delivery, effective upon
receipt, of a properly completed Interest Rate Selection Notice
to the Agent on or before 11:00 A.M. three (3) Business Days'
prior to the date of such election or Conversion:
(i) elect a subsequent Interest Period
for all or a portion of Eurodollar Rate Loans to
begin on the last day of the then current Interest
Period for such Eurodollar Rate Loans; and
(ii) Convert Base Rate Loans to
Eurodollar Rate Loans on any Business Day.
Each election and Conversion pursuant to this Section
2.8 shall be subject to the limitations on Eurodollar Rate Loans
set forth in the definition of "Interest Period" herein and in
Sections 2.1, 2.3 and Article V. The Agent shall give written
notice to each Lender of such notice of election or Conversion
prior to 3:00 P.M. on the day such notice of election or
Conversion is received. All such Continuations or Conversions of
Loans shall be effected pro rata based on the Applicable
Commitment Percentages of the Lenders.
2.9. INCREASE AND DECREASE IN AMOUNTS. The amount of
the Total Revolving Credit Commitment which shall be available to
the Borrowers as Advances shall be reduced by the aggregate
amount of Revolving Credit Outstandings, Letters of Credit
Outstandings and Swing Line Outstandings.
32<PAGE>
2.10. COMMITMENT FEE. For the period beginning on
the Closing Date and ending on the Revolving Credit Termination
Date, the Borrowers agree to pay to the Agent, for the pro rata
benefit of the Lenders based on their Applicable Commitment
Percentages, a quarterly unused fee equal to the Commitment Fee
Rate multiplied by the average daily amount by which the Total
Revolving Credit Commitment exceeds the sum of (i) Revolving
Credit Outstandings (without giving effect to Swing Line
Outstandings) plus (ii) Letter of Credit Outstandings. Such fees
shall be due in arrears on the last Business Day of each March,
June, September and December commencing March 31, 1998 to the
Revolving Credit Termination Date (but excluding such day for the
purpose of computing such fee). Notwithstanding the foregoing,
so long as any Lender fails to make available any portion of its
Revolving Credit Commitment when requested, such Lender shall not
be entitled to receive payment of its pro rata share of such fee
until such Lender shall make available such portion. Such fee
shall be calculated on the basis of a year of 360 days for the
actual number of days elapsed.
2.11. DEFICIENCY ADVANCES. No Lender shall be
responsible for any default of any other Lender in respect to
such other Lender's obligation to make any Loan or fund its
purchase of any Participation hereunder nor shall the Revolving
Credit Commitment of any Lender hereunder be increased as a
result of such default of any other Lender. Without limiting the
generality of the foregoing, in the event any Lender shall fail
to advance funds to the Borrowers or either of them under the
Revolving Credit Facility as herein provided, the Agent may in
its discretion, but shall not be obligated to, advance under the
Note in its favor as a Lender all or any portion of such amount
or amounts (each, a "deficiency advance") and shall thereafter be
entitled to payments of principal of and interest on such
deficiency advance in the same manner and at the same interest
rate or rates to which such other Lender would have been entitled
had it made such advance under its Note; provided that, upon
payment to the Agent from such other Lender of the entire
outstanding amount of each such deficiency advance, together with
accrued and unpaid interest thereon, from the most recent date or
dates interest was paid to the Agent by the Borrowers on each
Loan comprising the deficiency advance at the interest rate per
annum for overnight borrowing by the Agent from the Federal
Reserve Bank, then such payment shall be credited against the
applicable Note of the Agent in full payment of such deficiency
advance and the Borrowers shall be deemed to have borrowed the
amount of such deficiency advance from such other Lender as of
the most recent date or dates, as the case may be, upon which any
payments of interest were made by the Borrowers thereon.
2.12. USE OF PROCEEDS. The proceeds of the Loans
made pursuant to the Revolving Credit Facility hereunder shall be
used by the Borrowers (i) to repay Existing Debt and the fees and
expenses related to such refinancing, (ii) to finance Permitted
Acquisitions and (iii) for general working capital needs and
other corporate purposes.
2.13. EXTENSION OF STATED TERMINATION DATE. At the
request of the Borrowers the Lenders may, in their sole
discretion, elect to extend the Stated Termination Date then in
effect for two additional periods of one year each. The
Borrowers shall notify the Lenders of their request for such an
extension by delivering to the Agent, which shall then promptly
deliver to the Lenders, notice of such request signed by an
33<PAGE>
Authorized Representative not more than 90 days nor less than 60
days prior to the first anniversary of the Closing Date in the
case of an initial extension, and not more than 90 days nor less
than 60 days prior to the second anniversary of the Closing Date
in the case of a second extension. If 100% of the Lenders shall
elect to so extend, the Agent shall notify the Borrowers in
writing within 30 days of its receipt of such request for
extension of the decision of the Lenders as to whether to extend
the Stated Termination Date. Failure by any Lender to respond to
a request for an extension shall constitute a refusal of such
Lender to give its consent to such extension. Failure by the
Agent to give such notice shall constitute refusal by the Lenders
to extend the Stated Termination Date.
2.14. SWING LINE.
(a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the
Revolving Credit Facility in an efficient manner and to
minimize the transfer of funds between the Agent and
the Lenders, the Swing Line Lender shall make available
Swing Line Loans to the Borrowers prior to the
Revolving Credit Termination Date. The Swing Line
Lender shall not make any Swing Line Loan pursuant
hereto (i) if to the actual knowledge of the Swing Line
Lender, the Borrowers are not in compliance with all
the conditions to the making of Loans set forth in this
Agreement, (ii) if after giving effect to such Swing
Line Loan, the Swing Line Outstandings exceed
$5,000,000, or (iii) if after giving effect to such
Swing Line Loan, the sum of the Swing Line
Outstandings, Revolving Credit Outstandings and Letter
of Credit Outstandings exceeds the Total Revolving
Credit Commitment. Swing Line Loans shall be limited
to Base Rate Loans. The Borrowers may borrow, repay
and reborrow under this Section 2.14. Unless notified
to the contrary by the Swing Line Lender, borrowings
under the Swing Line shall be made in the minimum
amount of $100,000 or, if greater, in amounts which are
integral multiples of $100,000, or in the amount
necessary to effect a Base Rate Refunding Loan, upon
written request by telefacsimile transmission,
effective upon receipt, by an Authorized Representative
made to the Swing Line Lender not later than 12:30 P.M.
on the Business Day of the requested borrowing. Each
such Borrowing Notice shall specify the amount of the
borrowing and the date of borrowing, and shall be in
the form of Exhibit D-2, with appropriate insertions.
Unless notified to the contrary by the Swing Line
Lender, each repayment of a Swing Line Loan shall be in
an amount which is an integral multiple of $100,000 or
the aggregate amount of all Swing Line Outstandings.
If the applicable Borrower or Borrowers instruct the
Swing Line Lender to debit any demand deposit account
of the Borrowers in the amount of any payment with
respect to a Swing Line Loan, or the Swing Line Lender
otherwise receives repayment, after 3:00 P.M. on a
Business Day, such payment shall be deemed received on
the next Business Day.
(b) Swing Line Loans shall bear interest at the
Base Rate, the interest payable on Swing Line Loans is
solely for the account of the Swing Line Lender, and
all accrued and unpaid interest on Swing Line Loans
shall be payable on the dates and in the manner
provided in Sections 2.2(b) and 2.4 with respect to
interest on Base Rate Loans. The Swing Line
Outstandings shall be evidenced by a separate Note, in
the form of Exhibit J-2, payable to the order of the
Swing Line Lender in the amount of the Swing Line dated
the Closing Date and duly completed, executed and
delivered to the Swing Line Lender.
(c) Upon the making of a Swing Line Loan, each
Lender shall be deemed to have purchased from the Swing
Line Lender a Participation therein in an amount equal
to that Lender's Applicable Commitment Percentage of
34<PAGE>
such Swing Line Loan. Upon demand made by the Swing
Line Lender, each Lender shall, according to its
Applicable Commitment Percentage of such Swing Line
Loan, promptly provide to the Swing Line Lender its
purchase price therefor in an amount equal to its
Participation therein. Any advance made by a Lender
pursuant to demand of the Swing Line Lender of the
purchase price of its Participation shall be deemed (i)
provided that the conditions to making Loans shall be
satisfied, a Base Rate Refunding Loan under Section 2.1
until the Borrowers shall convert such Base Rate Loan
in accordance with the terms of Section 2.8, and (ii)
in all other cases, the funding by each Lender of the
purchase price of its Participation in such Swing Line
Loan. The obligation of each Lender to so provide its
purchase price to the Swing Line Lender shall be
absolute and unconditional and shall not be affected by
the occurrence of an Event of Default or any other
occurrence or event.
(d) The Borrowers at their option and subject to
the terms hereof, may request an Advance pursuant to
Section 2.1 in an amount sufficient to repay Swing Line
Outstandings on any date and the Agent shall provide
from the proceeds of such Advance to the Swing Line
Lender the amount necessary to repay such Swing Line
Outstandings (which the Swing Line Lender shall then
apply to such repayment) and credit any balance of the
Advance in immediately available funds in the manner
directed by the Borrowers pursuant to Section
2.1(c)(ii). The proceeds of such Advances shall be
paid to the Swing Line Lender for application to the
Swing Line Outstandings and the Lenders shall then be
deemed to have made Loans in the amount of such
Advances. The Swing Line shall continue in effect
until the Revolving Credit Termination Date, at which
time all Swing Line Outstandings and accrued interest
thereon shall be due and payable in full.
2.15. ADDITIONAL FEES. In addition to any fees
described herein, the Borrowers agree to pay to the Agent and
NationsBank such other fees as may be agreed to in a separate
writing or writings.
35<PAGE>
ARTICLE III
Letters of Credit
-----------------
3.1. LETTERS OF CREDIT. The Issuing Bank agrees,
subject to the terms and conditions of this Agreement, upon
request of the Borrowers to issue from time to time for the
account of a Borrower Letters of Credit upon delivery to the
Issuing Bank of an Application and Agreement for Letter of Credit
relating thereto in form and content acceptable to the Issuing
Bank; provided, that (i) the Letter of Credit Outstandings shall
not exceed the Total Letter of Credit Commitment and (ii) no
Letter of Credit shall be issued if, after giving effect thereto,
Letter of Credit Outstandings plus the Revolving Credit
Outstandings plus Swing Line Outstandings shall exceed the Total
Revolving Credit Commitment. No Letter of Credit shall have an
expiry date (including all rights of the Borrowers or any
beneficiary named in such Letter of Credit to require renewal) or
payment date occurring later than the earlier to occur of one
year after the date of its issuance or sixty (60) days prior to
the Stated Termination Date.
3.2. REIMBURSEMENT.
(a) The Borrowers hereby unconditionally agree to pay
to the Issuing Bank immediately on demand at the Principal Office
all amounts required to pay all drafts drawn or purporting to be
drawn under the Letters of Credit and all reasonable expenses
incurred by the Issuing Bank in connection with the Letters of
Credit, and in any event and without demand to place in
possession of the Issuing Bank (which shall include Advances
under the Revolving Credit Facility if permitted by Section 2.1
and Swing Line Loans if permitted by Section 2.14) sufficient
funds to pay all debts and liabilities arising under any Letter
of Credit. The Issuing Bank agrees to give the Borrowers prompt
notice of any request for a draw under a Letter of Credit. The
Issuing Bank may, at the request of the Borrowers, charge any
account any of the Borrowers may have with it for any and all
amounts the Issuing Bank pays under a Letter of Credit, plus
charges and reasonable expenses as from time to time agreed to by
the Issuing Bank and such Borrower; provided that to the extent
permitted by Section 2.1(c)(iv) and Section 2.14, amounts shall
be paid pursuant to Advances under the Revolving Credit Facility
or, if the Borrowers shall elect, by Swing Line Loans. The
Borrowers agree to pay the Issuing Bank interest on any
Reimbursement Obligations not paid when due hereunder at the Base
Rate plus two percent (2.0%), or the maximum rate permitted by
applicable law, if lower, such rate to be calculated on the basis
of a year of 360 days for actual days elapsed commencing on the
date of such drawing until such Reimbursement Obligation is so
paid by direct reimbursement by the Borrowers or by a Base Rate
Refunding Loan.
(b) In accordance with the provisions of Section
2.1(c), the Issuing Bank shall notify the Agent of any drawing
under any Letter of Credit promptly following the receipt by the
Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof a
Participation in the liability of the Issuing Bank in respect of
each Letter of Credit in an amount equal to such Lender's
36<PAGE>
Applicable Commitment Percentage of such liability, and to the
extent that the Borrowers are obligated to pay the Issuing Bank
under Section 3.2(a), each Lender (other than the Issuing Bank)
thereby shall absolutely, unconditionally and irrevocably assume,
and shall be unconditionally obligated to pay to the Issuing Bank
as hereinafter described, its Applicable Commitment Percentage of
the liability of the Issuing Bank under such Letter of Credit.
(i) Each Lender (including the Issuing
Bank in its capacity as a Lender) shall, subject
to the terms and conditions of Article II, pay to
the Agent for the account of the Issuing Bank at
the Principal Office in Dollars and in immediately
available funds, an amount equal to its Applicable
Commitment Percentage of any drawing under a
Letter of Credit, such funds to be provided in the
manner described in Section 2.1(c)(iv).
(ii) Simultaneously with the making of each
payment by a Lender to the Issuing Bank pursuant
to Section 2.1(c)(iv)(B), such Lender shall,
automatically and without any further action on
the part of the Issuing Bank or such Lender,
acquire a Participation in an amount equal to such
payment (excluding the portion thereof
constituting interest accrued prior to the date
the Lender made its payment) in the related
Reimbursement Obligation of the applicable
Borrower or Borrowers. The Reimbursement
Obligations of the Borrowers shall be immediately
due and payable whether by Advances made in
accordance with Section 2.1(c)(iv), or otherwise.
(iii) Each Lender's obligation to make
payment to the Agent for the account of the
Issuing Bank pursuant to Section 2.1(c)(iv) and
this Section 3.2(c), and the right of the Issuing
Bank to receive the same, shall be absolute and
unconditional, shall not be affected by any
circumstance whatsoever and shall be made without
any offset, abatement, withholding or reduction
whatsoever. If any Lender is obligated to pay but
does not pay amounts to the Agent for the account
of the Issuing Bank in full upon such request as
required by Section 2.1(c)(iv) or this
Section 3.2(c), such Lender shall, on demand, pay
to the Agent for the account of the Issuing Bank
interest on the unpaid amount for each day during
the period commencing on the date of notice given
to such Lender pursuant to Section 2.1(c) until
such Lender pays such amount to the Agent for the
account of the Issuing Bank in full at the
interest rate per annum for overnight borrowing by
the Agent from the Federal Reserve Bank.
(iv) In the event the Lenders have
purchased Participations in any Reimbursement
Obligation as set forth in clause (ii) above, then
at any time payment (in fully collected,
immediately available funds) of such Reimbursement
Obligation, in whole or in part, is received by
the Issuing Bank from the applicable Borrower or
Borrowers, the Issuing Bank shall promptly pay to
each Lender an amount equal to its Applicable
Commitment Percentage of such payment from the
applicable Borrower or Borrowers.
(d) Promptly following the end of each calendar
quarter, the Issuing Bank shall deliver to the Agent a notice
describing the aggregate undrawn amount of all Letters of Credit
at the end of such quarter. Upon the request of any Lender from
time to time, the Issuing Bank shall deliver to the Agent, and
the Agent shall deliver to such Lender, any other information
reasonably requested by such Lender with respect to each
outstanding Letter of Credit.
37<PAGE>
(e) The issuance by the Issuing Bank of each Letter of
Credit shall, in addition to the conditions precedent set forth
in Article VI, be subject to the conditions that such Letter of
Credit be in such form and contain such terms as shall be
reasonably satisfactory to the Issuing Bank consistent with the
then current practices and procedures of the Issuing Bank with
respect to similar letters of credit, and the applicable Borrower
or Borrowers shall have executed and delivered such other
instruments and agreements relating to such Letters of Credit as
the Issuing Bank shall have reasonably requested consistent with
such practices and procedures and shall not be in conflict with
any of the express terms herein contained. All Letters of Credit
shall be issued pursuant to and subject to the Uniform Customs
and Practice for Documentary Credits, 1993 revision,
International Chamber of Commerce Publication No. 500 and all
subsequent amendments and revisions thereto.
(f) The Borrowers agree that the Issuing Bank may, in
its sole discretion, accept or pay, as complying with the terms
of any Letter of Credit, any drafts or other documents otherwise
in order which may be signed or issued by an administrator,
executor, trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, liquidator, receiver, attorney in
fact or other legal representative of a party who is authorized
under such Letter of Credit to draw or issue any drafts or other
documents.
(g) Without limiting the generality of the provisions
of Section 12.9, the Borrowers hereby agree to indemnify and
hold harmless the Issuing Bank, each other Lender and the Agent
from and against any and all claims and damages, losses,
liabilities, reasonable costs and expenses which the Issuing
Bank, such other Lender or the Agent may incur (or which may be
claimed against the Issuing Bank, such other Lender or the Agent)
by any Person by reason of or in connection with the issuance or
transfer of or payment or failure to pay under any Letter of
Credit; provided that the Borrowers shall not be required to
indemnify the Issuing Bank, any other Lender or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the
extent, but only to the extent, (i) caused by the willful
misconduct or gross negligence of the party to be indemnified or
(ii) caused by the failure of the Issuing Bank to pay under any
Letter of Credit after the presentation to it of a request for
payment strictly complying with the terms and conditions of such
Letter of Credit, unless such payment is prohibited by any law,
regulation, court order or decree. The indemnification and hold
harmless provisions of this Section 3.2(g) shall survive
repayment of the Obligations, occurrence of the Revolving Credit
Termination Date and expiration or termination of this Agreement.
(h) Without limiting the Borrowers' rights as set
forth in Section 3.2(g), the obligation of the Borrowers to
immediately reimburse the Issuing Bank for drawings made under
Letters of Credit and the Issuing Bank's right to receive such
payment shall be absolute, unconditional and irrevocable, and
such obligations of the Borrowers shall be performed strictly in
accordance with the terms of this Agreement (as waived, modified
or amended) and such Letters of Credit and the related
Application and Agreement for any Letter of Credit, under all
circumstances whatsoever, including the following circumstances:
38<PAGE>
(i) any lack of validity or enforceability
of the Letter of Credit, the obligation supported
by the Letter of Credit or any other agreement or
instrument relating thereto (collectively, the
"Related LC Documents");
(ii) any amendment or waiver of or any
consent to or departure from all or any of the
Related LC Documents;
(iii) the existence of any claim, setoff,
defense (other than the defense of payment in
accordance with the terms of this Agreement) or
other rights which the Borrowers may have at any
time against any beneficiary or any transferee of
a Letter of Credit (or any persons or entities for
whom any such beneficiary or any such transferee
may be acting), the Agent, the Lenders or any
other Person, whether in connection with the Loan
Documents, the Related LC Documents or any
unrelated transaction;
(iv) any breach of contract or other
dispute between the Borrowers and any beneficiary
or any transferee of a Letter of Credit (or any
persons or entities for whom such beneficiary or
any such transferee may be acting), the Agent, the
Lenders or any other Person;
(v) any draft, statement or any other
document presented under the Letter of Credit
proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement
therein being untrue or inaccurate in any respect
whatsoever; or
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification
granted or agreed to by the Agent, with or without
notice to or approval by the Borrowers in respect
of any of the Borrowers' Obligations under this
Agreement.
3.3. LETTER OF CREDIT FACILITY FEES. The Borrowers
shall pay to the Agent, (i) for the pro rata benefit of the
Lenders based on their Applicable Commitment Percentages, a fee
on the aggregate amount available to be drawn on each outstanding
Letter of Credit at a rate equal to the Applicable Margin for
Eurodollar Rate Loans, and (ii) for the benefit of the Issuing
Bank, 0.125%, in each case based on the aggregate amount
available to be drawn on each outstanding Letter of Credit.
Such fees shall be due with respect to each Letter of Credit
quarterly in arrears on the last day of each March, June,
September and December, the first such payment to be made on the
first such date occurring after the date of issuance of a Letter
of Credit. The fees described in this Section 3.3 shall be
calculated on the basis of a year of 360 days for the actual
number of days elapsed.
3.4. EXISTING LETTERS OF CREDIT. The Borrowers, the
Agent and the Lenders hereby agree that each Existing Letter of
Credit shall be deemed a Letter of Credit for all purposes of
this Agreement as if such Existing Letter of Credit were issued
on the date hereof, and the Issuing Bank shall be entitled to all
the benefits as Issuing Bank and to all the obligations of the
Borrowers under this Agreement with respect to such Existing
Letters of Credit.
39
<PAGE>
ARTICLE IV
Security
--------
4.1. GUARANTY. To guarantee the full and timely
payment and performance of all Obligations now existing or
hereafter arising, the Borrowers shall cause the Guaranty to be
delivered by each Guarantor in the form and substance reasonably
acceptable to the Agent, on or before the Closing Date. The
Borrowers hereby agree to cause each hereafter acquired or
created Domestic Subsidiary to execute and deliver a Guaranty
pursuant to the terms of Section 8.19.
4.2. STOCK PLEDGE. (a) As security for the full and
timely payment and performance of (i) all Obligations now
existing or hereafter arising and (ii) if applicable, its
obligations as a Guarantor under the Guaranty Agreement, the
Borrowers and each Person owning any Pledged Stock shall on or
before the Closing Date deliver to the Agent a Pledge Agreement
together with certificates representing such Pledged Stock with
stock powers duly executed in blank, which Pledge Agreements
shall pledge to the Agent for the benefit of the Lenders (w)
100% of the capital stock and related interests and rights of any
Domestic Subsidiary and (x) 65% (or such lesser percentage as
such Person shall own) of the Voting Stock of any Direct Foreign
Subsidiary in accordance with the terms hereof and thereof.
(b) The Borrowers hereby agree that they shall, and
shall cause each applicable Subsidiary to, execute and deliver a
Pledge Agreement which shall pledge to the Agent for the benefit
of the Lenders (y) 100% (or such lesser percentage as such Person
shall own of any Partially-Owned Subsidiary) of the capital stock
and related interests and rights of any hereafter acquired or
created Domestic Subsidiary and (z) 65% (or such lesser
percentage as such Person shall own) of the Voting Stock of any
hereafter acquired or created Direct Foreign Subsidiary, in each
case pursuant to the terms of Section 8.19.
4.3. NEGATIVE PLEDGE. To induce the Lenders to extend
credit to the Borrowers hereunder, the Borrowers shall, and shall
cause each Guarantor to, execute and deliver to the Agent the
Negative Pledge Agreement on or before the Closing Date. The
Borrowers hereby agree that they shall, and shall cause each
hereafter acquired or created Domestic Subsidiary to, execute and
deliver a Negative Pledge Agreement pursuant to the terms of
Section 8.19.
4.4. SECURITY INTERESTS. As security for the full
and timely payment and performance of (i) all Obligations now
existing or hereafter arising and (ii) if applicable, its
obligations as a Guarantor under the Guaranty Agreement, the
Borrowers shall, and shall cause each Domestic Subsidiary to,
deliver to the Agent, on or before the Closing Date, in form and
substance reasonably acceptable to the Agent, the Uniform
Commercial Code financing statements and each other Security
Instrument sufficient to grant to the Agent a valid, duly
perfected security interest in the Collateral described therein,
subject to no prior Liens other than Permitted Liens, and do all
things necessary in the opinion of the Agent and its counsel to
grant to the Agent for the benefit of the Lenders a first
priority security interest, duly perfected with respect to
Collateral governed by the UCC, in all Collateral subject to no
40<PAGE>
prior Lien or other encumbrance or restriction on transfer (other
than restrictions on transfer imposed by applicable securities
laws and Permitted Liens). The Borrowers hereby agree to cause
the Security Instruments to be delivered by any hereafter
acquired or created Domestic Subsidiary pursuant to the terms of
Section 8.19 hereof.
4.5. FURTHER ASSURANCES. At the request of the Agent,
the Borrowers will, and will cause each Subsidiary to, execute by
their respective duly authorized officers, alone or with the
Agent, any certificate, instrument, statement or document and
will procure any such certificate, instrument, statement or
document (and pay all connected costs) which the Agent reasonably
deems necessary to create, continue or preserve the Liens (and
the perfection and priority thereof) of the Agent for the benefit
of the Lenders contemplated hereby and by the other Loan
Documents.
41
<PAGE>
ARTICLE V
Change in Circumstances
-----------------------
5.1. INCREASED COST AND REDUCED RETURN. (a) If, after
the date hereof, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof,
or compliance by any Lender (or its Applicable Lending Office)
with any request or directive (whether or not having the force of
law) of any such governmental authority, central bank or
comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty or other charge with
respect to any Eurodollar Rate Loans, its Note or its
obligation to make Eurodollar Rate Loans, or change the
basis of taxation of any amounts payable to such Lender (or
its Applicable Lending Office) under this Agreement or its
Note in respect of any Eurodollar Rate Loans (other than
taxes imposed on the overall net income of such Lender by
the jurisdiction in which such Lender has its principal
office or such Applicable Lending Office and franchise
taxes);
(ii) shall impose, modify or deem applicable any
reserve, special deposit, assessment or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits
with or other liabilities or commitments of, such Lender (or
its Applicable Lending Office), including the Revolving
Credit Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its
Applicable Lending Office) or the London interbank market
any other condition affecting this Agreement or its Note or
any of such extensions of credit or liabilities or
commitments;
and the result of any of the foregoing is to increase the cost to
such Lender (or its Applicable Lending Office) of making,
Converting into, Continuing, or maintaining any Eurodollar Rate
Loans or to reduce any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or its
Note with respect to any Eurodollar Rate Loans, then the
Borrowers shall pay to such Lender on demand such amount or
amounts as will compensate such Lender for such increased cost or
reduction. If any Lender requests compensation by the Borrowers
under this Section 5.1(a), the Borrowers may, by notice to such
Lender (with a copy to the Agent), suspend the obligation of such
Lender to make or Continue Loans of the Type with respect to
which such compensation is requested, or to Convert Loans of any
other Type into Loans of such Type, until the event or condition
giving rise to such request ceases to be in effect (in which case
the provisions of Section 5.4 shall be applicable); provided that
such suspension shall not affect the right of such Lender to
receive the compensation so requested.
(b) If, after the date hereof, any Lender shall have
determined that the adoption of any applicable law, rule or
regulation regarding capital adequacy or any change therein or in
42<PAGE>
the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the
force of law) of any such governmental authority, central bank or
comparable agency, has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or
such corporation could have achieved but for such adoption,
change, request or directive (taking into consideration its
policies with respect to capital adequacy), then from time to
time upon demand the Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender for
such reduction.
(c) Each Lender shall promptly notify the Borrowers and the
Agent of any event of which it has actual knowledge, occurring
after the date hereof, which will entitle such Lender to
compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation
and will not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to it. Any Lender claiming
compensation under this Section shall furnish to the Borrowers
and the Agent a statement setting forth the additional amount or
amounts to be paid to it hereunder which shall be conclusive in
the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
No Lender or any parent corporation shall be entitled to receive
compensation for amounts incurred more than 180 days prior to
delivery of such notice.
5.2. LIMITATION ON TYPES OF LOANS. If on or prior to the
first day of any Interest Period for any Eurodollar Rate Loan:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist
for ascertaining the Eurodollar Rate for such Interest
Period; or
(b) the Required Lenders determine (which
determination shall be conclusive) and notify the Agent that
the Eurodollar Rate will not adequately and fairly reflect
the cost to the Lenders of funding Eurodollar Rate Loans for
such Interest Period;
then the Agent shall give the Borrowers prompt notice thereof
specifying the relevant Type of Loans and the relevant amounts or
periods, and so long as such condition remains in effect, the
Lenders shall be under no obligation to make additional Loans of
such Type, Continue Loans of such Type, or to Convert Loans of
any other Type into Loans of such Type and the Borrowers shall,
on the last day(s) of the then current Interest Period(s) for the
outstanding Loans of the affected Type, either prepay such Loans
or Convert such Loans into another Type of Loan in accordance
with the terms of this Agreement.
5.3. ILLEGALITY. Notwithstanding any other provision of
this Agreement, in the event that it becomes unlawful for any
Lender or its Applicable Lending Office to make, maintain or fund
43<PAGE>
Eurodollar Rate Loans hereunder, then such Lender shall promptly
notify the Borrowers thereof and such Lender's obligation to make
or Continue Eurodollar Rate Loans and to Convert other Types of
Loans into Eurodollar Rate Loans shall be suspended until such
time as such Lender may again make, maintain and fund Eurodollar
Rate Loans (in which case the provisions of Section 5.4 shall be
applicable).
5.4. TREATMENT OF AFFECTED LOANS. If the obligation of any
Lender to make a particular Type of Eurodollar Rate Loan or to
Continue, or to Convert Loans of any other Type into, Loans of a
particular Type shall be suspended pursuant to Section 5.1 or 5.3
hereof (Loans of such Type being herein called "Affected Loans"
and such Type being herein called the "Affected Type"), such
Lender's Affected Loans shall be automatically Converted into
Base Rate Loans on the last day(s) of the then current Interest
Period(s) for Affected Loans (or, in the case of a Conversion
required by Section 5.3 hereof, on such earlier date as such
Lender may specify to the Borrowers with a copy to the Agent)
and, unless and until such Lender gives notice as provided below
that the circumstances specified in Section 5.1 or 5.3 hereof
that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans
have been so Converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's
Affected Loans shall be applied instead to its Base Rate
Loans; and
(b) all Loans that would otherwise be made or
Continued by such Lender as Loans of the Affected Type shall
be made or Continued instead as Base Rate Loans, and all
Loans of such Lender that would otherwise be Converted into
Loans of the Affected Type shall be Converted instead into
(or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrowers (with a copy to the
Agent) that the circumstances specified in Section 5.1 or 5.3
hereof that gave rise to the Conversion of such Lender's Affected
Loans pursuant to this Section 5.4 no longer exist (which such
Lender agrees to do promptly upon such circumstances ceasing to
exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be
automatically Converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding Loans of the
Affected Type, to the extent necessary so that, after giving
effect thereto, all Loans held by the Lenders holding Loans of
the Affected Type and by such Lender are held pro rata (as to
principal amounts, Types and Interest Periods) in accordance with
their respective Revolving Credit Commitments.
5.5. COMPENSATION. Upon the request of any Lender, the
Borrowers shall pay to such Lender such amount or amounts as
shall be sufficient (in the reasonable opinion of such Lender) to
compensate it for any loss, cost or expense (including loss of
anticipated profits) incurred by it as a result of:
(a) any payment, prepayment or Conversion of a
Eurodollar Rate Loan for any reason (including, without
limitation, the acceleration of the Loans pursuant to
Section 10.1) on a date other than the last day of the
Interest Period for such Loan; or
(b) any failure by the Borrowers for any reason
(including, without limitation, the failure of any condition
precedent specified in Article VI to be satisfied) to borrow
(other than by reason of the failure of a Lender or Lenders
to make funds available without cause), Convert, Continue or
prepay a Eurodollar Rate Loan on the date for such
borrowing, Conversion, Continuation or prepayment specified
in the relevant notice of borrowing, prepayment,
Continuation or Conversion under this Agreement.
44<PAGE>
Any Lender claiming compensation under this Section 5.5
shall furnish the Borrowers and the Agent a statement setting
forth in reasonable detail the amounts to be paid to it hereunder
and the determination thereof shall be conclusive absent manifest
error.
5.6. TAXES. (a) Any and all payments by the Borrowers to
or for the account of any Lender or the Agent hereunder or under
any other Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of
each Lender and the Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws
of which such Lender (or its Applicable Lending Office) or the
Agent (as the case may be) is organized or any political
subdivision thereof, except withholding taxes applicable to a
Lender (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrowers or the
Lender shall be required by law to deduct any Taxes from or in
respect of any sum payable under this Agreement or any other Loan
Document to any Lender or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 5.6) such Lender or the Agent receives
an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrowers shall make such
deductions, (iii) the Borrowers shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) the Borrowers shall
furnish to the Agent, at its address referred to in Section 11.2,
the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrowers agree to pay any and all
present or future stamp or documentary taxes and any other excise
or property taxes or charges or similar levies which arise from
any payment made under this Agreement or any other Loan Document
or from the execution or delivery of, or otherwise with respect
to, this Agreement or any other Loan Document (hereinafter
referred to as "Other Taxes").
(c) The Borrowers agree to indemnify each Lender and the
Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted
by any jurisdiction on amounts payable under this Section 5.6)
paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its
execution and delivery of this Agreement in the case of each
Lender listed on the signature pages hereof and on or prior to
the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing
by the Borrowers or the Agent (but only so long as such Lender
remains lawfully able to do so), shall provide the Borrowers and
the Agent with (a) if such Lender is a "bank" within the meaning
of Section 881(c)(3)(A) of the Code (i) Internal Revenue Service
Form 1001 or 4224, as appropriate, or any successor form
45<PAGE>
prescribed by the Internal Revenue Service, certifying that such
Lender is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the
income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United
States, (ii) Internal Revenue Service Form W-8 or W-9, as
appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required
by any taxing authority (including any certificate required by
Sections 871(h) and 881(c) of the Code), certifying that such
Lender is entitled to an exemption from or a reduced rate of tax
on payments pursuant to this Agreement or any of the other Loan
Documents or, (b) if such Lender is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and which intends to
claim exemption from U.S. Federal withholding tax under Section
871(h) of 881(c) of the Code with respect to payments of
"portfolio interest," a form W-8, or any subsequent versions
thereof or successors thereto (and, if such Lender delivers a
Form W-8, a certificate representing that such Lender is not a
bank for purposes of Section 881(c) of the Code, is not a 10-
percent shareholder (within the meaning of Section 871(h)(3)(B)
of the Code) of either of the Borrowers and is not a controlled
foreign corporation related to either of the Borrowers (within
the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Lender claiming complete
exemption from, or a reduced rate of, U.S. Federal withholding
tax on payments of interest by the Borrowers under this Agreement
and the other Loan Documents.
(e) For any period with respect to which a Lender has
failed to provide the Borrowers and the Agent with the
appropriate form pursuant to Section 5.6(d) (unless such failure
is due to a change in treaty, law or regulation occurring
subsequent to the date on which a form originally was required to
be provided), such Lender shall not be entitled to
indemnification under Section 5.6(a) or 5.6(b) with respect to
Taxes imposed by the United States; provided, however, that
should a Lender, which is otherwise exempt from or subject to a
reduced rate of withholding tax, become subject to Taxes because
of its failure to deliver a form required hereunder, the
Borrowers shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes at such
Lender's expense.
(f) If the Borrowers are required to pay additional amounts
to or for the account of any Lender pursuant to this Section 5.6,
then such Lender will agree to use reasonable efforts to change
the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender,
is not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment
of Taxes, the Borrowers shall furnish to the Agent evidence of
such payment and the Agent shall provide a copy of such evidence
to the applicable Lender.
(h) Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and
obligations of the Borrowers contained in this Section 5.6 shall
survive the termination of the Revolving Credit Commitments and
the payment in full of the Notes.
5.7. LENDING OFFICE. Without affecting its rights under
this Article V or any other provision of this Agreement, each
Lender agrees that if there is any increase in cost to or
reduction in an amount receivable by such Lender with respect to
46<PAGE>
which the Borrowers would be obligated to compensate such Lender
pursuant to this Article V, such Lender shall use reasonable
efforts to elect an alternative lending office (to the extent
such Lender has available to it such an office) which would not
result in any such increase in any cost to or reduction in any
amount receivable by such Lender; provided, however, that no
Lender shall be obligated to select an alternative lending office
if such Lender determines, in its sole discretion, that (i) as a
result of such selection such Lender would be in violation of any
applicable law, regulation, treaty or guideline, or would incur
additional costs or expenses or (ii) such selection would be
inadvisable for regulatory reasons or would impose an
unreasonable burden or additional costs on such Lender.
5.8. SYNDICATION COSTS. If the Agent incurs any breakage
costs, charges or fees incurred with respect to Eurodollar Rate
Loans on account of the syndication of the Revolving Credit
Facility, the Borrowers shall immediately reimburse the Agent for
any such costs, charges or fees. Such right of reimbursement is
in addition to, and not in limitation of, the other provisions of
this Article V. In addition, the Borrowers agree that the
incurrence of such costs and expenses shall not be the basis for
Miller withholding its consent or approval of any Person as an
Eligible Assignee.
5.9. REPLACEMENT BANKS. Miller may, on ten (10) Business
Days' prior written notice to the Agent and a Lender, cause a
Lender who has incurred increased costs or is unable to make
Eurodollar Rate Loans to (and such Lender shall) assign, pursuant
to Section 12.1, all of its rights and obligations under this
Agreement to an Eligible Assignee designated by Miller which is
willing to become a Lender for a purchase price equal to the
outstanding principal amount of the Loans payable to such Lender
plus any accrued but unpaid interest on such Loans, any accrued
but unpaid fees with respect to such Lender's Revolving Credit
Commitment and any other amount payable to such Lender under this
Agreement; provided, however, that any expenses or other amounts
which would be owing to such Lender pursuant to any
indemnification provision hereof (including, if applicable,
Section 5.5) shall be payable by Miller as if Miller had prepaid
the Loans of such Lender rather than such Lender having assigned
its interest hereunder. Miller or the assignee shall pay the
applicable processing fee under Section 12.1.
47
<PAGE>
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
--------------------------------------------------------
6.1. CONDITIONS OF INITIAL ADVANCE. The obligations of the
Lenders to make the initial Advance under the Revolving Credit
Facility, and of the Issuing Bank to issue any Letter of Credit,
and of the Swing Line Lender to make any Swing Line Loan, are
subject to the conditions precedent that:
(a) the Agent shall have received on the Closing Date,
in form and substance satisfactory to the Agent and Lenders,
the following:
(i) executed originals of each of this
Agreement, the Notes, the initial Guaranty, the
Security Instruments and the other Loan Documents,
together with all schedules and exhibits thereto;
(ii) the favorable written opinion or
opinions with respect to the Loan Documents and
the transactions contemplated thereby of counsel
to the Loan Parties dated the Closing Date,
addressed to the Agent and the Lenders and
satisfactory to Smith Helms Mulliss & Moore,
L.L.P., special counsel to the Agent,
substantially in the form of Exhibit L-1 hereto;
(iii) resolutions of the boards of directors
or other appropriate governing body (or of the
appropriate committee thereof) of each of the Loan
Parties certified by its secretary or assistant
secretary as of the Closing Date, approving and
adopting the Loan Documents to be executed by such
Person, and authorizing the execution and delivery
thereof;
(iv) specimen signatures of officers of
each of the Loan Parties executing the Loan
Documents on behalf of such Person, certified by
the secretary or assistant secretary of such
Person;
(v) the Organizational Documents of each
of the Loan Parties other than Immaterial
Subsidiaries certified as of a recent date by the
Secretary of State of its state of organization;
(vi) the Operating Documents of each of the
Loan Parties certified as of the Closing Date as
true and correct by its secretary or assistant
secretary;
(vii) certificates issued as of a recent
date by the Secretaries of State of the respective
jurisdictions of formation of each of the Loan
Parties other than Immaterial Subsidiaries as to
the due existence and good standing of such Person
or the equivalent, if any, in foreign
jurisdictions;
48<PAGE>
(viii) appropriate certificates of
qualification to do business, good standing and,
where appropriate, authority to conduct business
under assumed name, issued in respect of each of
the Loan Parties other than Immaterial
Subsidiaries as of a recent date by the Secretary
of State or comparable official of each
jurisdiction, if any, in which the failure to be
qualified to do business or authorized so to
conduct business could have a Material Adverse
Effect;
(ix) stock certificates representing all of
the shares of Pledged Stock with undated stock
powers executed in blank for each certificate;
(x) copies of all partnership, joint
venture or other organizational agreements
certified as true and complete by the Secretary or
Assistant Secretary of the Loan Party party
thereto;
(xi) Certificate and Receipt of Registrar of
all of the Assigned Interests;
(xii) receipt and satisfactory review of (A)
audited consolidated financial statements of Miller and
its Subsidiaries as of April 30, 1997, and (B)
consolidated interim financial statements of Miller and
its Subsidiaries as of October 31, 1997;
(xiii) receipt and satisfactory review of all
reports filed with the Securities and Exchange
Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act since April 30, 1997;
(xiv) notice of appointment of the initial
Authorized Representative(s);
(xv) all schedules to the Credit Agreement and the
other Loan Documents which shall be reviewed by and
satisfactory to the Agent;
(xvi) a schedule of the corporate and capital
ownership structure of Miller and its Subsidiaries
which shall be reviewed by and be satisfactory to the
Agent;
(xvii) evidence that all fees payable by the
Borrowers to the Agent, NMS and the Lenders in
connection herewith have been paid in full;
(xviii)an initial Borrowing Notice, if any;
(xix) payoff letters from the holders of Existing
Debt to be refinanced with the Revolving Credit
Facility;
(xx) Uniform Commercial Code search results with
respect to all Loan Parties other than Immaterial
Subsidiaries showing only Permitted Liens;
49<PAGE>
(xxi) UCC-1 Financing Statements duly executed by
the Borrowers and each Guarantor and applicable
Subsidiary and in proper form for filing for all
locations required by applicable law to perfect the
Liens of the Agent and the Lenders under the Security
Instruments as a first priority Lien as to items of
Collateral in which a security interest may be
perfected by the filing of financing statements; and
(xxii) such other documents, instruments,
certificates and opinions as the Agent or any Lender
may reasonably request in connection with the
consummation of the transactions contemplated hereby,
including the due perfection of a first priority
security interest in all Collateral;
(b) In the good faith judgment of the Agent and the
Lenders:
(i) There shall not have occurred or become known
to the Agent or the Lenders any event, condition,
situation or status since the date of the information
contained in the financial and business projections,
budgets, pro forma data and forecasts concerning Miller
and its Subsidiaries delivered to the Agent prior to
the making of the initial Loan that has had or could
reasonably be expected to result in a Material Adverse
Effect;
(ii) No litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding
shall be pending or threatened that has had or could
reasonably be expected to have a Material Adverse
Effect on Miller or its Subsidiaries or on the ability
of Miller and the other Loan Parties taken as a whole
to perform their obligations under the Loan Documents;
(iii) The Loan Parties shall have received all
approvals, consents and waivers, and shall have made or
given all necessary filings and notices as shall be
required to consummate the transactions contemplated
hereby without the occurrence of any default under,
conflict with or violation of (A) any applicable law,
rule, regulation, order or decree of any Governmental
Authority or arbitral authority or (B) any agreement,
document or instrument to which any of the Loan Parties
is a party or by which any of them or their properties
is bound; and
(iv) There shall not have occurred or exist (A) an
engagement in hostilities by the United States of
America or other national or international emergency or
calamity, (B) a general suspension of or material
limitation on trading on the New York Stock Exchange or
other national securities exchange, (C) the declaration
of a general banking moratorium by any applicable
Governmental Authority or the imposition by any
applicable Governmental Authority of any material
limitation on transactions of the type contemplated by
the Loan Documents, or (D) any other material
disruption of financial or capital markets that could
reasonably be expected to adversely affect the
transactions contemplated under the Loan Documents.
6.2. CONDITIONS OF ALL LOANS AND LETTERS OF CREDIT. The
obligations of the Lenders to make any Loans, and the Issuing
Bank to issue Letters of Credit, and the Swing Line Lender to
50<PAGE>
make Swing Line Loans, hereunder on or subsequent to the Closing
Date are subject to the satisfaction of the following conditions:
(a) the Agent or, in the case of Swing Line Loans, the
Swing Line Lender shall have received a Borrowing Notice if
required by Article II;
(b) the representations and warranties of the Loan
Parties set forth in Article VII and in each of the other
Loan Documents shall be true and correct in all material
respects on and as of the date of such Advance, Swing Line
Loan or Letter of Credit issuance or renewal, with the same
effect as though such representations and warranties had
been made on and as of such date, except to the extent that
such representations and warranties expressly relate to an
earlier date and except that the financial statements
referred to in Section 7.6(a) shall be deemed to be those
financial statements most recently delivered to the Agent
and the Lenders pursuant to Section 8.1 and except as
otherwise permitted hereunder from the date financial
statements are delivered to the Agent and the Lenders in
accordance with such Section;
(c) in the case of the issuance of a Letter of Credit,
the applicable Borrower or Borrowers shall have executed and
delivered to the Issuing Bank an Application and Agreement
for Letter of Credit in form and content acceptable to the
Issuing Bank together with such other instruments and
documents as it shall request;
(d) at the time of (and after giving effect to) each
Advance, Swing Line Loan or the issuance of a Letter of
Credit, no Material Adverse Effect shall have occurred and
be continuing;
(e) at the time of (and after giving effect to) each
Advance, Swing Line Loan or the issuance of a Letter of
Credit, no Default or Event of Default specified in Article
X shall have occurred and be continuing; and
(f) immediately after giving effect to:
(i) a Loan, the aggregate principal
balance of all outstanding Loans, Participations
and Reimbursement Obligations for each Lender
shall not exceed such Lender's Revolving Credit
Commitment;
(ii) the issuance of a Letter of Credit or
renewal thereof, the aggregate principal balance
of all outstanding Participations in Letters of
Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest
after deduction of all Participations in Letters
of Credit and Reimbursement Obligations of other
Lenders) for each Lender and in the aggregate
shall not exceed, respectively, (X) such Lender's
Letter of Credit Commitment or (Y) the Total
Letter of Credit Commitment;
51<PAGE>
(iii) a Swing Line Loan, the Swing Line
Outstandings shall not exceed $5,000,000; and
(iv) a Loan, Swing Line Loan or a Letter of
Credit or renewal thereof, the sum of Letter of
Credit Outstandings plus Revolving Credit
Outstandings plus Swing Line Outstandings shall
not exceed the Total Revolving Credit Commitment.
52
<PAGE>
ARTICLE VII
Representations and Warranties
------------------------------
Each of the Borrowers represents and warrants with respect
to itself and to its Subsidiaries (which representations and
warranties shall survive the delivery of the documents mentioned
herein and the making of Loans and the issuing of Letters of
Credit), that:
7.1. Organization and Authority.
--------------------------
(a) Miller and each Subsidiary is a corporation or
other entity duly organized and validly existing under the
laws of the jurisdiction of its formation;
(b) Miller and each Subsidiary (x) has the requisite
power and authority to own its properties and assets and to
carry on its business as now being conducted and as
contemplated in the Loan Documents, and (y) is qualified to
do business in every jurisdiction in which the conduct of
its business or ownership of its assets requires it to be so
qualified and in which the failure to so qualify would have
a Material Adverse Effect;
(c) Each Borrower has the power and authority to
execute, deliver and perform this Agreement and the Notes,
and to borrow hereunder, and to execute, deliver and perform
each of the other Loan Documents to which it is a party;
(d) Each Guarantor has the power and authority to
execute, deliver and perform the Guaranty and each of the
other Loan Documents to which it is a party; and
(e) When executed and delivered, each of the Loan
Documents to which any Loan Party is a party will be the
legal, valid and binding obligation or agreement of such
Loan Party, enforceable against such Loan Party in
accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency,
reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the
effect of general principles of equity (whether considered
in a proceeding at law or in equity).
7.2. LOAN DOCUMENTS. The execution, delivery and
performance by each Loan Party of each of the Loan Documents to
which it is a party:
(a) have been duly authorized by all requisite
Organizational Action (including any required shareholder or
partner approval) of such Loan Party required for the lawful
execution, delivery and performance thereof;
(b) do not violate any provisions of (i) applicable
law, rule or regulation, (ii) any judgment, writ, order,
determination, decree or arbitral award of any Governmental
Authority or arbitral authority binding on such Loan Party
or any Subsidiary or its properties, or (iii) the
Organizational Documents or Operating Documents of such Loan
Party;
53
<PAGE>
(c) does not and will not be in conflict with, result
in a breach of or constitute an event of default, or an
event which, with notice or lapse of time or both, would
constitute an event of default, under any contract,
indenture, agreement or other instrument or document to
which such Loan Party or any Subsidiary is a party, or by
which the properties or assets of such Loan Party are bound;
and
(d) except as provided in the Security Instruments,
does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such
Loan Party or any Subsidiary.
7.3. SOLVENCY. Each Loan Party is Solvent after giving
effect to the transactions contemplated by the Loan Documents.
7.4. SUBSIDIARIES AND STOCKHOLDERS. Miller has no
Subsidiaries other than those Persons listed as Subsidiaries in
Schedule 7.4 and additional Subsidiaries created or acquired
after the Closing Date in compliance with Section 8.19; Schedule
7.4 states as of the date hereof the organizational form of each
entity, the authorized and issued capitalization of each
Subsidiary listed thereon, the number of shares or other equity
interests of each class of capital stock or interest issued and
outstanding of each such Subsidiary and the number and/or
percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any
interest) of each such class of capital stock or other equity
interest owned by Miller or by any such Subsidiary; the
outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable; and Miller and each such Subsidiary
owns beneficially and of record all the shares and other
interests it is listed as owning in Schedule 7.4, free and clear
of any Lien.
7.5. OWNERSHIP INTERESTS. Miller owns no interest in any
Person other than the Persons listed in Schedule 7.4, equity
investments in Persons not constituting Subsidiaries permitted
under Section 9.6 and additional Subsidiaries created or acquired
after the Closing Date in compliance with Section 8.19.
7.6. FINANCIAL CONDITION.
(a) Miller has heretofore furnished to each Lender (i)
an audited consolidated balance sheet of Miller and its
Subsidiaries as at April 30, 1997 and the notes thereto and
the related consolidated statements of income, stockholders'
equity and cash flows for the Fiscal Year then ended as
examined and certified by Arthur Andersen LLP and (ii) an
unaudited consolidated interim balance sheet of Miller and
its Subsidiaries as at October 31, 1997 and the notes
thereto and the related consolidated statements of income
and cash flows for the interim periods then ended. Except
as set forth therein, such financial statements (including
the notes thereto) present fairly the financial condition of
Miller and its Subsidiaries as of the end of such Fiscal
Year and interim period and results of their operations for
the Fiscal Year and interim period then ended and the
changes in its stockholders' equity for the Fiscal Year then
ended, all in conformity with GAAP applied on a Consistent
Basis, subject however, in the case of unaudited interim
statements to year end audit adjustments;
54<PAGE>
(b) since April 30, 1997 there has been no material
adverse change in the condition, financial or otherwise, of
Miller and its Subsidiaries taken as a whole or in the
businesses, properties, performance, prospects or operations
of Miller and its Subsidiaries taken as a whole, nor have
such businesses or properties been materially adversely
affected as a result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood,
embargo or act of God; and
(c) except as set forth in the financial statements
referred to in Section 7.6(a) or in Schedule 7.6 or
permitted by Section 9.4, neither Miller nor any Subsidiary
has incurred, other than in the ordinary course of business,
any Indebtedness, Contingent Obligation or other commitment
or liability which remains outstanding or unsatisfied.
7.7. TITLE TO PROPERTIES. Miller and each of its
Subsidiaries has title to all its real and personal properties,
subject to no transfer restrictions or Liens of any kind, except
for the transfer restrictions and Liens described in Schedule 7.7
and transfer restrictions and Liens permitted by Section 9.3.
7.8. TAXES. Miller and each of its Subsidiaries has filed
or caused to be filed all federal, state and local tax returns
which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate
proceedings diligently conducted and against which reserves
reflected in the financial statements described in Section 7.6(a)
and satisfactory to Miller's independent certified public
accountants have been established, have paid or caused to be paid
all taxes as shown on said returns or on any assessment received
by it, to the extent that such taxes have become due and the
failure of which would reasonably be expected to have a Material
Adverse Effect.
7.9. OTHER AGREEMENTS. No Loan Party nor any Subsidiary is
(a) a party to or subject to any judgment, order,
decree, agreement, lease or instrument, or subject to other
restrictions, which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect;
(b) in default in the performance, observance or
fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument to which
Miller or any Subsidiary is a party, which default has, or
if not remedied within any applicable grace period could
reasonably be expected to have, a Material Adverse Effect;
or
(c) a party to or bound by any agreement with any
other Person (other than the Agent and the Lenders pursuant
to this Agreement or any other Loan Document) which prohibits, limits
or restricts the ability of any Subsidiary to make any payments,
directly or indirectly, to Miller by way of dividends, advances,
repayments of loans or advances, or other returns on investments, or by
any other agreement or arrangement which restricts the ability of any
Subsidiary to make any payment, directly or indirectly, to Miller.
7.10. LITIGATION. Except as set forth in Schedule 7.10,
there is no action, suit, investigation or proceeding at law or
in equity or by or before any governmental instrumentality or
55<PAGE>
agency or arbitral body pending, or, to the best knowledge of the
Borrowers, threatened by or against Miller or any Subsidiary or
affecting Miller or any Subsidiary or any properties or rights of
Miller or any Subsidiary, which could reasonably be expected to
have a Material Adverse Effect. With respect to those matters
set forth on Schedule 7.10, the Borrowers believe that none of
the matters, individually or in the aggregate, will have a
Material Adverse Effect.
7.11. MARGIN STOCK. The proceeds of the borrowings
made hereunder will be used by the Borrowers only for the
purposes expressly authorized herein. None of such proceeds will
be used, directly or indirectly, for the purpose of purchasing or
carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to
purchase or carry margin stock or for any other purpose which
might constitute any of the Loans under this Agreement a "purpose
credit" within the meaning of said Regulation U or Regulation X
(12 C.F.R. Part 224) of the Board. Neither the Borrowers nor any
agent acting in their behalf has taken or will take any action
which might cause this Agreement or any of the documents or
instruments delivered pursuant hereto to violate any regulation
of the Board or to violate the Exchange Act or the Securities Act
of 1933, as amended, or any state securities laws, in each case
as in effect on the date hereof.
7.12. INVESTMENT COMPANY. No Loan Party nor any
Subsidiary is an "investment company," or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act
of 1940, as amended (15 U.S.C. Section 80a-1, et seq.). The
application of the proceeds of the Loans and repayment thereof by
the Borrowers and the performance by the Loan Parties of the
transactions contemplated by the Loan Documents will not violate
any provision of said Act, or any rule, regulation or order
issued by the Securities and Exchange Commission thereunder, in
each case as in effect on the date hereof.
7.13. PATENTS, ETC. Miller and each Subsidiary owns or
has the right to use, under valid license agreements or
otherwise, all material patents, licenses, franchises,
trademarks, trademark rights, trade names, trade name rights,
trade secrets and copyrights necessary to or used in the conduct
of its businesses as now conducted and as contemplated by the
Loan Documents, in all cases without known conflict with any
patent, license, franchise, trademark, trade secret, trade name,
copyright, other proprietary right of any other Person, which
conflict is reasonably likely to have a Material Adverse Effect.
7.14. NO UNTRUE STATEMENT. Neither (a) this Agreement
nor any other Loan Document or certificate or document executed
and delivered by or on behalf of Miller or any other Loan Party
in accordance with or pursuant to any Loan Document nor (b) any
statement, representation, or warranty provided to the Agent in
connection with the negotiation or preparation of the Loan
Documents contains any misrepresentation or untrue statement of
material fact or omits to state a material fact necessary, in
light of the circumstance under which it was made, in order to
make any such warranty, representation or statement contained
therein not misleading.
7.15. NO CONSENTS, ETC. Neither the respective
businesses or properties of the Loan Parties or any Subsidiary,
56<PAGE>
nor any relationship among the Loan Parties or any Subsidiary and
any other Person, nor any circumstance in connection with the
execution, delivery and performance of the Loan Documents and the
transactions contemplated thereby, is such as to require a
consent, approval or authorization of, or filing, registration or
qualification with, any Governmental Authority or any other
Person on the part of any Loan Party or any Subsidiary as a
condition to the execution, delivery and performance of, or
consummation of the transactions contemplated by the Loan
Documents, or if so, such consent, approval, authorization,
filing, registration or qualification has been duly obtained or
effected, or shall have been obtained or effected prior to the
Closing Date, as the case may be, except for filings necessary to
perfect the Liens on the Collateral.
7.16. EMPLOYEE BENEFIT PLANS.
(a) Miller, each ERISA Affiliate and each Subsidiary
is in compliance with all applicable provisions of ERISA,
the Code and the regulations and published interpretations
thereunder and in compliance with all Foreign Benefit Laws
and the regulations and published interpretations thereunder
with respect to all Employee Benefit Plans, except for any
required amendments for which the remedial amendment period
as defined in Section 401(b) of the Code has not yet expired
and except for failures to so comply that would not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect. Each Employee Benefit Plan that is intended to be
qualified under Section 401(a) of the Code has been
determined, or Miller or such ERISA Affiliate or its
Subsidiaries is in the process of obtaining a determination
by the Internal Revenue Service, to be so qualified, each
trust related to such Employee Benefit Plan has been
determined to be exempt under Section 501(a) of the Code,
and each Employee Benefit Plan subject to any Foreign
Benefit Law has received the required approvals by any
Governmental Authority regulating such Employee Benefit
Plan. No material liability has been incurred by Miller or
any ERISA Affiliate which remains unsatisfied for any taxes
or penalties with respect to any Employee Benefit Plan or
any Multiemployer Plan;
(b) Neither Miller, any ERISA Affiliate nor any
Subsidiary has (i) engaged in a nonexempt prohibited
transaction described in Section 4975 of the Code or Section
406 of ERISA affecting any of the Employee Benefit Plans or
the trusts created thereunder which could subject any such
Employee Benefit Plan or trust to a material tax or penalty
on prohibited transactions imposed under Code Section 4975
or ERISA, (ii) incurred any accumulated funding deficiency
with respect to any Employee Benefit Plan, whether or not
waived, or any other material liability to the PBGC which
remains outstanding other than the payment of premiums and
there are no premium payments which are due and unpaid,
(iii) failed to make a required contribution or payment to a
Multiemployer Plan which contributions or payments is in
excess of $250,000 individually or in the aggregate with
other such failed contribution or payment to a Multiemployer
Plan, (iv) failed to make a required installment or other
required material payment under Section 412 of the Code,
Section 302 of ERISA or the terms of such Employee Benefit
Plan, or (v) failed to make a required contribution or
payment under, or otherwise failed to operate in material
compliance with, any Foreign Benefit Law regulating any
Employee Benefit Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Employee Benefit Plan,
and neither Miller nor any ERISA Affiliate has incurred any
unpaid withdrawal liability with respect to any
Multiemployer Plan, which event or liability could
reasonably be expected to have a Material Adverse Effect;
57<PAGE>
(d) The present value of all vested accrued benefits
under each Employee Benefit Plan which is subject to Title
IV of ERISA or whose funding is regulated by any Foreign
Benefit Law, did not, as of the most recent valuation date
for each such plan, exceed the then current value of the
assets of such Employee Benefit Plan allocable to such
benefits;
(e) To the best of the Borrowers' knowledge, each
Employee Benefit Plan subject to Title IV of ERISA or the
funding of which is regulated by any Foreign Benefit Law,
maintained by Miller, any ERISA Affiliate or any Subsidiary,
has been administered in accordance with its terms in all
material respects and is in compliance in all material
respects with all applicable requirements of ERISA, all
Foreign Benefit Laws, and other applicable laws, regulations
and rules;
(f) The consummation of the Loans and the issuance of
the Letters of Credit provided for herein will not involve
any prohibited transaction under ERISA which is not subject
to a statutory or administrative exemption; and
(g) No proceeding, claim, lawsuit and/or investigation
exists or, to the best knowledge of the Borrowers after due
inquiry, is threatened concerning or involving any Employee
Benefit Plan, which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
7.17. NO DEFAULT. As of the date hereof, there does not
exist any Default or Event of Default hereunder.
7.18. ENVIRONMENTAL MATTERS. (a) Miller and each
Subsidiary is in compliance with all applicable Environmental
Laws in all material respects and has been issued and currently
maintains or is pursuing all required federal, state, local and
foreign permits, licenses, certificates and approvals. Neither
Miller nor any Subsidiary has been notified of any pending or
threatened action, suit, proceeding or investigation, and neither
Miller nor any Subsidiary is aware of any fact, which (i) calls
into question, or could reasonably be expected to call into
question, compliance by Miller or any Subsidiary with any
Environmental Laws, (ii) which seeks, or could reasonably be
expected to form the basis of a meritorious proceeding to seek,
to suspend, revoke or terminate any license, permit or approval
necessary for the generation, handling, storage, treatment or
disposal of any Hazardous Material or the operation of Miller's
or any Subsidiary's business or facility, (iii) seeks to cause,
or could reasonably be expected to form the basis of a
meritorious proceeding to cause, any property of Miller or any
Subsidiary to be subject to any restrictions on ownership, use,
occupancy or transferability under any Environmental Law, or (iv)
constitutes a reasonable basis to conclude that Miller or a
Subsidiary is a potentially responsible party with regard to any
release or threatened release of a Hazardous Material, which in
any of the foregoing instances could reasonably be expected to
have a Material Adverse Effect; and
58<PAGE>
(b) Neither Miller nor any Subsidiary, nor, to the best of
the Borrowers' knowledge, any previous owner or operator of any
real property owned or operated by Miller or any Subsidiary or
any other Person, has managed, generated, stored, released,
treated, or disposed of any Hazardous Material on any portion of
such property, or transferred or caused to be transferred any
Hazardous Material from such property to any other location
except in compliance in all material respects with all
Environmental Laws. Except for Hazardous Materials necessary for
the routine maintenance of the properties owned or operated by
Miller and its Subsidiaries or as brought on to such properties
in the ordinary course of Miller's or such Subsidiary's business,
which Hazardous Material shall be used in accordance with all
applicable Environmental Laws, the Borrowers covenant that they
shall, and shall cause each Subsidiary to, not permit any
Hazardous Materials to be brought on to the real property owned
or operated by Miller and its Subsidiaries, or if so brought or
found located thereon, shall be immediately removed, with proper
disposal, and all environmental cleanup requirements shall be
diligently undertaken pursuant to all Environmental Laws.
7.19. EMPLOYMENT MATTERS. (a) Except as set forth in
Schedule 7.19, none of the employees of Miller or any Subsidiary
is subject to any collective bargaining agreement and there are
no strikes, work stoppages, election or decertification petitions
or proceedings, unfair labor charges, equal opportunity
proceedings, or other material labor/employee related
controversies or proceedings pending or, to the best knowledge of
the Borrowers, threatened against Miller or any Subsidiary or
between Miller or any Subsidiary and any of its employees, other
than (in each of the foregoing cases) employee grievances arising
in the ordinary course of business which could not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect; and
(b) Except to the extent a failure to maintain compliance
would not have a Material Adverse Effect, Miller and each
Subsidiary is in compliance in all respects with all applicable
laws, rules and regulations pertaining to labor or employment
matters, including without limitation those pertaining to wages,
hours, occupational safety and taxation and there is no pending
or, to the knowledge of the Borrowers, threatened, litigation,
administrative proceeding or investigation, in respect of such
matters which, if decided adversely, could reasonably be likely,
individually or in the aggregate, to have a Material Adverse
Effect;
7.20. RICO. Neither Miller nor any Subsidiary is
engaged in or has engaged in any course of conduct that could
subject any of their respective properties to any Lien, seizure
or other forfeiture under any criminal or racketeer influenced
and corrupt organizations law.
7.21. PERFECTED SECURITY INSTRUMENTS. At all times
after execution and delivery of each Pledge Agreement by the
Pledgor thereunder and satisfaction of the conditions set forth
in Section 6.1, the security interests created in favor of the
Agent for the benefit of the Lenders under the Pledge Agreements
will constitute valid, perfected security interests in the
Pledged Stock and Assigned Interests, subject to no other Liens.
59
<PAGE>
ARTICLE VIII
Affirmative Covenants
---------------------
Until the Revolving Credit Termination Date, unless the
Required Lenders shall otherwise consent in writing, the
Borrowers will, and where applicable will cause each Subsidiary
to:
8.1. FINANCIAL REPORTS, ETC. (a) As soon as practical and
in any event within 90 days after the end of each Fiscal Year of
Miller, deliver or cause to be delivered to the Agent and each
Lender (i) consolidated balance sheets of Miller and its
Subsidiaries as at the end of such Fiscal Year, and the notes
thereto, and the related consolidated statements of income,
stockholders' equity and cash flows, and the respective notes
thereto, for such Fiscal Year, setting forth comparative
financial statements for the preceding Fiscal Year, all prepared
in accordance with GAAP applied on a Consistent Basis and
containing opinions of Arthur Andersen LLP, or other such
independent certified public accountants selected by Miller and
approved by the Agent, which are unqualified as to the scope of
the audit performed and as to the "going concern" status of
Miller and its Subsidiaries and without any exception not
acceptable to the Required Lenders, and (ii) a certificate of an
Authorized Representative demonstrating compliance with Sections
9.1(a) through 9.1(d), 9.2 and 9.4, which certificate shall be in
the form of Exhibit M;
(b) as soon as practical and in any event within 45 days
after the end of each fiscal quarter (except the last fiscal
quarter of the Fiscal Year), deliver to the Agent and each Lender
(i) consolidated balance sheets of Miller and its Subsidiaries as
at the end of such fiscal quarter, and the related consolidated
statements of income and stockholders' equity and cash flows for
such fiscal quarter and for the period from the beginning of the
then current Fiscal Year through the end of such reporting
period, and accompanied by a certificate of an Authorized
Representative to the effect that such financial statements
present fairly the financial position of Miller and its
Subsidiaries as of the end of such fiscal period and the results
of their operations and the changes in their financial position
for such fiscal period, in conformity with the standards set
forth in GAAP with respect to interim financial statements, and
(ii) a certificate of an Authorized Representative containing
computations for such quarter comparable to that required
pursuant to Section 8.1(a)(ii);
(c) together with each delivery of the financial statements
required by Section 8.1(a)(i), deliver to the Agent and each
Lender a letter from Miller's accountants specified in Section
8.1(a)(i) stating that in performing the audit necessary to
render an opinion on the financial statements delivered under
Section 8.1(a)(i), they obtained no knowledge of any Default or
Event of Default by the Borrowers in the fulfillment of the terms
and provisions of this Agreement insofar as they relate to
financial matters (which at the date of such statement remains
uncured); or if the accountants have obtained knowledge of such
Default or Event of Default, a statement specifying the nature
and period of existence thereof;
(d) promptly upon their becoming available to Miller,
deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which Miller
or any Subsidiary shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange,
60<PAGE>
(ii) any proxy statement distributed by Miller or any Subsidiary
to its shareholders, bondholders or the financial community in
general, and (iii) any management letter or other report
submitted to Miller or any Subsidiary by independent accountants
in connection with any annual, interim or special audit of Miller
or any Subsidiary;
(e) promptly deliver or cause to be delivered to the Agent
written notice of any event which constitutes or which with the
passage of time or giving of notice or both would constitute a
default or event of default under any Material Contract to which
Miller or any of its Subsidiaries is a party or by which Miller
or any Subsidiary thereof or any of their respective properties
may be bound; and
(f) promptly, from time to time, deliver or cause to be
delivered to the Agent such other information regarding Miller's
and any Subsidiary's operations, business affairs and financial
condition as the Agent may reasonably request.
The Agent and the Lenders are hereby authorized to deliver a
copy of any such financial or other information delivered
hereunder to the Lenders (or any affiliate of any Lender) or to
the Agent, to any Governmental Authority having jurisdiction over
the Agent or any of the Lenders pursuant to any written request
therefor or in the ordinary course of examination of loan files,
or, subject to Section 12.1(f), to any other Person who shall
acquire or consider the assignment of, or acquisition of any
participation interest in, any Obligation permitted by this
Agreement provided that notice is given to Miller if such
information is delivered to a Person not enumerated herein.
8.2. MAINTAIN PROPERTIES. Maintain all properties necessary
to its operations in good working order and condition, ordinary
wear and tear excepted, make all needed repairs, replacements and
renewals to such properties, and maintain free from Liens (other
than Permitted Liens) all trademarks, trade names, patents,
copyrights, trade secrets, know-how, and other intellectual
property and proprietary information (or adequate licenses
thereto), in each case as are necessary to conduct its business
as currently conducted or as contemplated hereby, all in
accordance with customary and prudent business practices.
8.3. EXISTENCE, QUALIFICATION, ETC. Except as otherwise
expressly permitted under Section 9.7, do or cause to be done all
things necessary to preserve and keep in full force and effect
its existence and all material rights and franchises, and, except
to the extent conveyed in connection with a transaction permitted
under Section 9.5 hereof, maintain its license or qualification
to do business as a foreign corporation and good standing in each
jurisdiction in which its ownership or lease of property or the
nature of its business makes such license or qualification
necessary and in which the failure to have such licenses or
qualifications could reasonably be expected to have a Material
Adverse Effect.
8.4. REGULATIONS AND TAXES. Comply in all material respects
with or contest in good faith all statutes and governmental
regulations and pay all taxes, assessments, governmental charges,
claims for labor, supplies, rent and any other obligation which,
if unpaid, would become a Lien against any of its properties
61<PAGE>
except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate
reserves acceptable to Miller's independent certified public
accountants have been established unless and until any Lien
resulting therefrom attaches to any of its property and becomes
enforceable against its creditors.
8.5. INSURANCE. (a) Keep all of its insurable properties
adequately insured at all times with responsible insurance
carriers against loss or damage by fire and other hazards, (b)
maintain general public liability insurance at all times with
responsible insurance carriers against liability on account of
damage to persons and property and (c) maintain insurance under
all applicable workers' compensation laws (or in the alternative,
maintain required reserves if self-insured for workers'
compensation purposes) and against loss by reason of business
interruption, such policies of insurance to have such limits,
deductibles, exclusions, co-insurance and other provisions
providing no less coverages than are maintained by similar
businesses that are similarly situated and shall be in form
reasonably satisfactory to the Agent and as of the Closing Date
are generally described in Schedule 8.5.
8.6. TRUE BOOKS. Keep true books of record and account in
which full, true and correct entries will be made of all of its
dealings and transactions, and set up on its books such reserves
as may be required by GAAP with respect to doubtful accounts and
all taxes, assessments, charges, levies and claims and with
respect to its business in general, and include such reserves in
interim as well as year-end financial statements.
8.7. RIGHT OF INSPECTION. Permit any representative
designated by the Agent or any Lender to visit and inspect any of
the properties, corporate books and financial reports of Miller
or any Subsidiary and to discuss its affairs, finances and
accounts with its principal officers and independent certified
public accountants, all at reasonable times, at reasonable
intervals and with reasonable prior notice and permit any Lender
to discuss either Borrower's affairs, finances and accounts with
its principal officers and its independent accountants, all at
reasonable times, at reasonable intervals and with reasonable
prior notice.
8.8. OBSERVE ALL LAWS. Conform to and duly observe in all
material respects all laws, rules and regulations and all other
valid requirements of any Governmental Authority with respect to
the conduct of its business.
8.9. GOVERNMENTAL LICENSES. Obtain and maintain all
licenses, permits, certifications and approvals of all applicable
Governmental Authorities as are required for the conduct in all
material respects of its business as currently conducted and as
contemplated by the Loan Documents.
8.10. COVENANTS EXTENDING TO OTHER PERSONS. Cause each
of its Subsidiaries to do with respect to itself, its business
and its assets, each of the things required of Miller in
Sections 8.2 through 8.9, 8.18, 8.19 and 8.20 inclusive;
8.11. OFFICER'S KNOWLEDGE OF DEFAULT. Upon any
Authorized Representative or the General Counsel of Miller
obtaining knowledge of any Default or Event of Default hereunder
or under any other obligation of Miller or any Subsidiary to any
62<PAGE>
Lender, or any event, development or occurrence which could
reasonably be expected to have a Material Adverse Effect, cause
such officer or an Authorized Representative promptly to notify
the Agent of the nature thereof, the period of existence thereof,
and what action Miller or such Subsidiary proposes to take with
respect thereto.
8.12. SUITS OR OTHER PROCEEDINGS. Upon any Authorized
Representative or the General Counsel of Miller obtaining
knowledge of any litigation or other proceedings being instituted
against Miller or any Subsidiary or any attachment, levy,
execution or other process being instituted against any assets of
Miller or any Subsidiary, making a claim or claims which could
reasonably be expected to result in damages in an aggregate
amount greater than $5,000,000 not otherwise covered by
insurance, or could reasonably be expected to have a Material
Adverse Effect, cause such officer or an Authorized
Representative promptly to deliver to the Agent written notice
thereof stating the nature and status of such litigation,
dispute, proceeding, levy, execution or other process.
8.13. NOTICE OF ENVIRONMENTAL COMPLAINT OR CONDITION.
Promptly provide to the Agent true, accurate and complete copies
of any and all notices, complaints, orders, directives, claims,
or citations received by Miller or any Subsidiary relating to any
(a) violation or alleged violation by Miller or any Subsidiary of
any applicable Environmental Law; (b) release or threatened
release by Miller or any Subsidiary, or at any facility or
property owned or leased or operated by Miller or any Subsidiary,
or by any Person handling, transporting, or disposing of any
Hazardous Material on behalf of Miller or any Subsidiary, of any
Hazardous Material, except where occurring legally; or (c)
liability or alleged liability of Miller or any Subsidiary for
the costs of cleaning up, removing, remediating or responding to
a release of Hazardous Materials, which in any of the foregoing
instances could reasonably be expected to have a Material Adverse
Effect.
8.14. ENVIRONMENTAL COMPLIANCE. If Miller or any
Subsidiary shall receive any letter, notice, complaint, order,
directive, claim or citation alleging that Miller or any
Subsidiary has violated any Environmental Law, has released or is
about to release any Hazardous Material or is liable for the
costs of cleaning up, removing, remediating or responding to a
release of Hazardous Materials, which in any of the foregoing
instances could reasonably be expected to have a Material Adverse
Effect, Miller shall provide prompt written notice thereof to the
Agent describing in reasonable detail the nature of the matter
and what action Miller or the applicable Subsidiary proposes to
take with respect thereto and shall, within the time period
permitted by the applicable Environmental Law or the Governmental
Authority responsible for enforcing such Environmental Law,
either (i) remove or remedy, or cause the applicable Subsidiary
to remove or remedy, such violation or release or satisfy such
liability or (ii) contest in good faith such violation so long as
no remedial action shall be required to be taken during the
period of such contest.
8.15. INDEMNIFICATION. Without limiting the generality
or application of Section 12.9, the Borrowers hereby agree to
indemnify and hold the Agent, the Lenders, the Swing Line Lender,
the Issuing Bank and NMS, and their respective officers,
directors, employees and agents, harmless from and against any
and all claims, losses, penalties, liabilities, damages and
expenses (including assessment and cleanup costs and reasonable
attorneys', consultants' or other experts' fees and
disbursements) arising directly or indirectly from, out of or by
reason of (a) the violation or alleged violation of any
Environmental Law by Miller or any Subsidiary or with respect to
any property owned, operated or leased by Miller or any
Subsidiary or (b) the use, generation, handling, storage,
transportation, treatment, emission, release, discharge or
disposal of any Hazardous Materials by or on behalf of Miller or
any Subsidiary or on or with respect to property owned or leased
63<PAGE>
or operated by Miller or any Subsidiary; provided, however, no
party shall be entitled to indemnification hereunder to the
extent that any such liability resulted directly from such
party's gross negligence or willful misconduct. The provisions
of this Section 8.15 shall survive the Revolving Credit
Termination Date and expiration or termination of this Agreement.
8.16. FURTHER ASSURANCES. At the Borrowers' cost and
expense, upon request of the Agent, duly execute and deliver or
cause to be duly executed and delivered, to the Agent such
further instruments, documents, certificates, financing and
continuation statements, and do and cause to be done such further
acts that may be reasonably necessary or advisable in the
reasonable opinion of the Agent to carry out more effectively the
provisions and purposes of this Agreement and the other Loan
Documents.
8.17. EMPLOYEE BENEFIT PLANS.
(a) With reasonable promptness, and in any event within
thirty (30) days thereof, give notice to the Agent of (i) the
establishment of any new Employee Benefit Plan (which notice
shall include a summary of such plan), (ii) the commencement of
contributions to any Employee Benefit Plan to which Miller, any
of its ERISA Affiliates or any of its Subsidiaries was not
previously contributing, (iii) any material increase in the
benefits of any existing Employee Benefit Plan, (iv) each funding
waiver request filed with respect to any Employee Benefit Plan
and all communications received or sent by Miller, any ERISA
Affiliate or any Subsidiary with respect to such request and
(v) the failure of Miller or any ERISA Affiliate or any
Subsidiary to make a required installment or payment under
Section 302 of ERISA or Section 412 of the Code (in the case of
Employee Benefit Plans regulated by the Code or ERISA) or any
Foreign Benefit Law (in the case of any Employee Benefit Plan
regulated by any Foreign Benefit Law) by the due date, provided
that Miller and its Subsidiaries shall not be required to give
any notice specified in this Section 8.17(a)(v) unless it relates
to any required installment or payment which could reasonably be
expected to result in a liability of $250,000 or more
individually or when aggregated with other similar failures to
make such payments;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any
(a) Termination Event or (b) nonexempt "prohibited transaction,"
as such term is defined in Section 406 of ERISA or Section 4975
of the Code, in connection with any Pension Plan or any trust
created thereunder, deliver to the Agent a notice specifying the
nature thereof, what action Miller, any ERISA Affiliate or any
Subsidiary has taken, is taking or proposes to take with respect
thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor, the PBGC or
any other Governmental Authority with respect thereto.
Notwithstanding anything in this Section 8.17(b) to the contrary,
Miller and its Subsidiaries shall not be required to give any
notice specified herein unless it relates to an Termination Event
or nonexempt "prohibited transaction" which could reasonably be
expected to result in a liability of $250,000 or more
individually or when aggregated with other similar events which
would require notice under this Section; and
64<PAGE>
(c) With reasonable promptness but in any event within
fifteen (15) days for purposes of clauses (i), (ii) and (iii),
deliver to the Agent copies of (i) any unfavorable determination
letter from the Internal Revenue Service regarding the
qualification of an Employee Benefit Plan under Section 401(a) of
the Code, (ii) all notices received by Miller or any ERISA
Affiliate or any Subsidiary of the PBGC's or any Governmental
Authority's intent to terminate any Employee Benefit Plan or to
have a trustee appointed to administer any Pension Plan, (iii)
each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) filed by Miller or any ERISA Affiliate with
the Internal Revenue Service with respect to each Employee
Benefit Plan and (iv) all notices received by Miller or any ERISA
Affiliate from a Multiemployer Plan sponsor concerning the
imposition or amount of withdrawal liability pursuant to Section
4202 of ERISA. Miller will notify the Agent in writing within
five (5) Business Days of Miller or any ERISA Affiliate obtaining
knowledge or reason to know that Miller or any ERISA Affiliate
has filed or intends to file a notice of intent to terminate any
Pension Plan under a distress termination within the meaning of
Section 4041(c) of ERISA. Notwithstanding anything in this
Section to the contrary, Miller and its Subsidiaries shall not be
required to give any notice specified herein unless it relates to
an event that could reasonably be expected to result in a
liability of $250,000 or more individually or when aggregated
with other similar events which would require notice under this
Section.
8.18. CONTINUED OPERATIONS. Except as permitted under
Section 9.7 or Section 9.12, continue at all times to conduct its
business and engage principally in the same or complementary line
or lines of business substantially as heretofore conducted.
8.19. ADDITIONAL SUPPORT DOCUMENTS. (a) Within fifteen
(15) days after the end of each fiscal quarter, with respect to
each Domestic Subsidiary acquired or created during such fiscal
quarter cause to be delivered to the Agent for the benefit of the
Lenders each of the following:
(i) a Guaranty executed by each such Domestic
Subsidiary substantially in the form of Exhibit F
hereto;
(ii) a Negative Pledge Agreement executed by each
such Domestic Subsidiary substantially in the form of
Exhibit I hereto;
(iii) a Pledge Agreement executed by each such
Domestic Subsidiary's stockholders substantially in the
form of Exhibit K-1 or K-2 hereto, as applicable,
pledging 100% (or such lesser percentage as such Person
shall own of any Partially-Owned Subsidiary) of the
capital stock and related interests and rights of such
Domestic Subsidiary, or other comparable instrument
pledging or assigning to the Agent for the benefit of
the Lenders all of the equity, membership or
partnership interest of such Domestic Subsidiary;
(iv) stock certificates representing 100% of the
capital stock and related interests and rights of each
such Domestic Subsidiary, or other appropriate evidence
of ownership of 100% of the equity, membership or
partnership interest of each such Domestic Subsidiary,
65<PAGE>
in each case together with duly executed stock powers
or powers of assignment in blank affixed thereto, or in
the case that any such Domestic Subsidiary is a
partnership or other entity that has not issued
certificates evidencing ownership of such partnership
or other entity, the Collateral Assignment of Interests
and Certificate and Receipt of Registrar of such entity
with respect to the registration of the Lien on
Assigned Interests so long as such assignment is not
prohibited by the Governing Documents of such entity;
(v) an opinion of counsel to each such Domestic
Subsidiary dated as of the date of delivery of the
Guaranty and other Loan Documents provided for in this
Section 8.19(a) and addressed to the Agent and the
Lenders, in form and substance substantially identical
to the opinion of counsel delivered pursuant to Section
6.1(a)(ii) on the Closing Date, with respect to each
Loan Party which is party to any Loan Document which
such newly acquired or created Subsidiary is required
to deliver or cause to be delivered pursuant to this
Section 8.19(a);
(vi) current copies of the Organizational
Documents and Operating Documents of each such Domestic
Subsidiary, minutes of duly called and conducted
meetings (or duly effected consent actions) of the
Board of Directors, partners, or appropriate committees
thereof (and, if required by such Organizational
Documents or Operating Documents, of the shareholders)
of such Domestic Subsidiary authorizing the actions and
the execution and delivery of documents described in
this Section 8.19(a); and
(vii) such other documents and agreements as
may be reasonably requested by the Agent.
(b) Within forty-five (45) days after the acquisition or
creation of any Direct Foreign Subsidiary, cause to be delivered
to the Agent for the benefit of the Lenders each of the
following:
(i) a Pledge Agreement executed by such Direct
Foreign Subsidiary's stockholders in such form
reasonably acceptable to the Agent, pledging 65% (or
such lesser percentage as such Person shall own) of the
Voting Stock of such Direct Foreign Subsidiary, or
other comparable instrument pledging or assigning to
the Agent for the benefit of the Lenders comparable
percentages of the voting and non-voting stock of such
Direct Foreign Subsidiary;
(ii) to the extent that such Direct Foreign
Subsidiary constitutes a Material Foreign Subsidiary,
an opinion of foreign counsel to such Domestic
Subsidiary dated as of the date of delivery of the
Pledge Agreement or other comparable instrument
provided for in this Section 8.19(b) and addressed to
the Agent and the Lenders, in form and substance
acceptable to the Agent, with respect to each Loan
Party which is party to any Loan Document which such
newly acquired or created Direct Foreign Subsidiary is
required to deliver or cause to be delivered pursuant
to this Section 8.19(b); and
66<PAGE>
(iii) such other documents and agreements as
may be reasonably requested by the Agent.
8.20. SUBSIDIARY SUPPORT OF PERMITTED INDEBTEDNESS. So
long as not prohibited by law, Miller and each Subsidiary shall
cause each of their Subsidiaries to make cash payments, directly
or indirectly, to the Borrowers by way of dividends, advances,
repayments of loans or advances, or other returns on investments,
or by way of any other arrangement such that the Borrowers shall
have the ability to satisfy all interest and principal payments
required under the terms of this Agreement
or any other Loan Document and under the terms of any other
Permitted Indebtedness.
8.21. OPINIONS OF FOREIGN COUNSEL. If requested by the
Agent, with respect to each Direct Foreign Subsidiary that
constitutes a Material Foreign Subsidiary at any time after the
date hereof, deliver to the Agent a written opinion of foreign
counsel in form and substance satisfactory to the Agent with
respect to each Loan Party which is party to any Loan Document.
8.22. POST-CLOSING COVENANTS. On or before March 31,
1998, deliver to the Agent and the Lenders the following:
(i) any document or instrument required by Section
6.1(a) of this Agreement which was not delivered on the date
of execution hereof;
(ii) with respect to CAS Properties, LLC, a Mississippi
limited liability company wholly owned by Miller ("CAS"),
(A) evidence satisfactory to the Agent that CAS has (x) sold
its only asset (certain real property) and distributed the
net proceeds thereof to a Guarantor or Borrower and, after
giving effect to such sale and distribution, has no assets
or (y) transferred all of its assets to a Guarantor or
Borrower or (B) delivered to the Agent a Guaranty Agreement,
Pledge Agreement and other Security Instruments and other
items required by Section 8.19(a) as if CAS were a newly
created Domestic Subsidiary and subject to such Section
8.19(a);
(iii) with respect to Asper Realty Trust, a
Massachusetts business trust wholly owned by Miller
("Asper"), deliver to the Agent a Guaranty Agreement, Pledge
Agreement and other Security Instruments and other items
requested by Section 8.19(a) as if Asper were a newly
created Domestic Subsidiary and subject to such Section
8.19(a);
(iv) with respect to any Direct Foreign Subsidiary,
deliver to the Agent the Pledge Agreement and Security
Instruments and other items required by Section 8.19(b) as
if such Foreign Subsidiary were a newly created Direct
Foreign Subsidiary and subject to such Section 8.19(b).
Until the requirements of this Section 8.22(ii) and
(iii) are satisfied, the Borrowers will not transfer any
proceeds of the Loans to either CAS or Asper.
8.23. UNIFORM COMMERCIAL CODE FINANCING STATEMENTS.
Within thirty (30) days following a request by the Agent after
(i) the occurrence of a Default or (ii) a determination by the
67<PAGE>
Agent that, in its reasonable judgment, the filing of Uniform
Commercial Code Financing Statements should be completed in order
to better perfect the lien of the Agent and Lenders on the
Collateral, the Borrowers will execute, and will cause each
Subsidiary which is a party to a Pledge Agreement to execute, and
deliver to Agent for filing such Uniform Commercial Code
Financing Statements as Agent may deem necessary to perfect any
liens on the Collateral. The Borrowers will pay all filing fees,
taxes and other amounts which are payable to perfect the liens on
the Collateral by filing of such financing statements.
68
<PAGE>
ARTICLE IX
Negative Covenants
------------------
Until the Revolving Credit Termination Date, unless the
Required Lenders shall otherwise consent in writing, Miller will
not, nor will it permit any Subsidiary to:
9.1. Financial Covenants.
-------------------
(a) CONSOLIDATED TANGIBLE SHAREHOLDERS' EQUITY. Permit
Consolidated Tangible Shareholders' Equity to be less than
(i) $93,000,000 for the period from the Closing Date through
January 30, 1998 and (ii) at the last day of each succeeding
fiscal quarter of Miller (the "Step Up Date"), commencing
with the fiscal quarter ending January 31, 1998, and until
(but excluding) the last day of the next following fiscal
quarter, the sum of (A) the amount of Consolidated Tangible
Shareholders' Equity required to be maintained pursuant to
this Section 9.1(a) as at the end of the immediately
preceding Step Up Date, plus (B) fifty percent (50%) of
Consolidated Net Income for the period beginning with the
first day of such fiscal quarter of Miller and ending on the
Step Up Date, plus (C) one hundred percent (100%) of the Net
Proceeds of any Equity Offering.
(b) CONSOLIDATED FUNDED SENIOR INDEBTEDNESS TO
CONSOLIDATED EBITDA. Permit at any time the ratio of
Consolidated Funded Senior Indebtedness to Consolidated
EBITDA for the Four-Quarter Period most recently ended to be
greater than 3.00 to 1.00.
(c) CONSOLIDATED FUNDED TOTAL INDEBTEDNESS TO
CONSOLIDATED EBITDA. Permit at any time the ratio of
Consolidated Funded Total Indebtedness to Consolidated
EBITDA for the Four-Quarter Period most recently ended to be
greater than 3.50 to 1.00.
(d) CONSOLIDATED FIXED CHARGE RATIO. Permit at any
time during the respective periods set forth below the
Consolidated Fixed Charge Ratio to be less than that set
forth opposite each such period:
Consolidated Fixed Charge Ratio
Period Must Not Be Less Than
------ -------------------------------
Closing Date through and 1.00 to 1.00
including the day immediately
prior to Fiscal Year End 1999
Fiscal Year End 1999 through and
including the day immediately
prior to Fiscal Year End 2000 1.20 to 1.00
Fiscal Year End 2000 and thereafter 1.25 to 1.00
69
<PAGE>
9.2. ACQUISITIONS. Enter into any agreement, contract,
binding commitment or other arrangement providing for, or
otherwise effect, any Acquisition, or take any action to solicit
the tender of securities or proxies in respect thereof in order
to effect any Acquisition; provided, however, that Miller or any
Subsidiary may enter into any such agreement for, and effect, one
or more Permitted Acquisitions with respect to which the Cost of
Acquisition for such Permitted Acquisitions, in the aggregate,
does not exceed $50,000,000 in any Fiscal Year.
9.3. LIENS. Incur, create or permit to exist any Lien,
charge or other encumbrance of any nature whatsoever with respect
to any property or assets now owned or hereafter acquired by
Miller or any Subsidiary, other than Liens created in favor of
the Agent and the Lenders under the Loan Documents and the
following (collectively, the "Permitted Liens"):
(a) Liens existing as of the date hereof and as set
forth in Schedule 7.7;
(b) Liens imposed by law for taxes, assessments or
charges of any Governmental Authority for claims not yet due
or which are being contested in good faith by appropriate
proceedings diligently conducted and with respect to which
adequate reserves or other appropriate provisions are being
maintained in accordance with GAAP and which Liens are not
yet enforceable against other creditors;
(c) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other
Liens imposed by law or created in the ordinary course of
business and in existence less than 90 days from the date of
creation thereof for amounts not yet due or which are being
contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate
reserves or other appropriate provisions are being
maintained in accordance with GAAP and which Liens are not
yet enforceable against other creditors;
(d) Liens incurred or deposits made in the ordinary
course of business (including, without limitation, surety
bonds and appeal bonds) in connection with workers'
compensation, unemployment insurance and other types of
social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and other
similar obligations or arising as a result of progress
payments under government contracts;
(e) purchase money Liens to secure Indebtedness
permitted under Section 9.4(d) and incurred to purchase fixed
assets, provided such Indebtedness represents not less than 75%
and not more than 100% of the purchase price of such assets as
of the date of purchase thereof and no property other than the
assets so purchased secures such Indebtedness;
(f) Liens arising in connection with Capital Leases
permitted under Section 9.4(d) provided that no such Lien shall
extend to any Collateral or to any other property other than the
assets subject to such Capital Leases;
70<PAGE>
(g) easements (including reciprocal easement
agreements and utility agreements), rights-of-way,
covenants, consents, reservations, encroachments, variations
and zoning and other restrictions, charges or encumbrances
(whether or not recorded) affecting real property, which do
not interfere materially with the ordinary conduct of the
business of Miller or any Subsidiary and which do not
materially detract from the value of the property to which
they attach or materially impair the use thereof to Miller
or any Subsidiary; and
(h) Liens securing Indebtedness assumed in connection
with an Acquisition permitted by Section 9.2, provided that
such Liens extend only to the assets acquired in such
Acquisition.
9.4. INDEBTEDNESS. Incur, create, assume or permit to exist
any Indebtedness, howsoever evidenced, except the following
(collectively the "Permitted Indebtedness"):
(a) Indebtedness existing as of the Closing Date as
set forth in Schedule 7.6; provided the outstanding
principal amount of such Indebtedness shall not at any time
exceed $23,925,858 in the aggregate; and provided, further,
none of the instruments and agreements evidencing or
governing such Indebtedness shall be amended, modified or
supplemented after the Closing Date to change any terms of
subordination, repayment or rights of conversion, put,
exchange or other rights from such terms and rights as in
effect on the Closing Date;
(b) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan
Document;
(c) the endorsement of negotiable instruments for
deposit or collection or similar transactions in the
ordinary course of business;
(d) purchase money Indebtedness and obligations under
Capital Leases in an aggregate principal amount not to
exceed $5,000,000 outstanding at any time;
(e) obligations of Miller incurred in the ordinary
course of business consistent with past practice directly or
indirectly guaranteeing any trade account Indebtedness of
any Subsidiary in an aggregate amount not to exceed
$2,000,000 outstanding at any time;
(f) the Guaranty permitted hereunder of Guarantors;
(g) Indebtedness assumed in connection with any
Acquisition permitted under Section 9.2; and
(h) Indebtedness other than permitted in clauses (a) -
(g) above in an aggregate principal amount not to exceed
$5,000,000 outstanding at any time.
9.5. TRANSFER OF ASSETS. Sell, lease, transfer or otherwise
dispose of any assets of Miller or any Subsidiary other than:
71
<PAGE>
(a) dispositions of inventory in the ordinary course
of business;
(b) dispositions of property that is substantially
worn, damaged, obsolete or, in the judgment of Miller, no
longer best used or useful in its business or that of any
Subsidiary;
(c) transfers of assets necessary to give effect to
investment or merger or consolidation transactions permitted
by Sections 9.6 and 9.7; and
(d) transfers of machinery or equipment from Miller or
a Subsidiary to any Foreign Subsidiary in the ordinary
course of business consistent with past practice, which
machinery or equipment has a book value which, when
aggregated with the value of transactions with Foreign
Subsidiaries permitted by clause (b) of Section 9.9, does
not exceed $2,000,000 in any Fiscal Year.
9.6. INVESTMENTS. Purchase, own, invest in or otherwise
acquire, directly or indirectly, any stock or other securities,
or make any investment or permit to exist any interest whatsoever
in any other Person or permit to exist any loans or advances to
any Person, except that Miller and its Subsidiaries may maintain
investments or invest in:
(a) any Person acquired in or formed solely for the
purpose of effecting an Acquisition permitted by Section
9.2;
(b) Eligible Securities;
(c) investments, including joint ventures, existing as
of the date hereof and as set forth in Schedule 7.4;
(d) accounts receivable arising and trade credit
granted in the ordinary course of business and any
securities received in satisfaction or partial satisfaction
thereof in connection with accounts of financially troubled
Persons to the extent reasonably necessary in order to
prevent or limit loss;
(e) investments in Miller Towing or in Guarantors;
(f) loans and advances to employees in the ordinary
course of business of Miller in an aggregate amount
outstanding at any one time not to exceed $1,000,000; and
(g) investments in conditional sales contracts or
finance leases owned by Miller Financial and originated in
connection with the financing by Miller Financial of sales
of inventory in the ordinary course of business consistent
with past practice.
9.7. MERGER OR CONSOLIDATION. (a) Consolidate with or merge
into any other Person, or (b) permit any other Person to merge
into it; provided, however, (i) any Domestic Subsidiary of
Miller may merge into or transfer all or substantially all of its
assets into or consolidate with Miller, Miller Towing or any
other wholly owned Guarantor, (ii) any Foreign Subsidiary may
merge into or transfer all or substantially all of its assets to
72<PAGE>
or consolidate with Miller or any other Subsidiary, and (iii) in
order to consummate an Acquisition permitted by Section 9.2, any
other Person may merge into or consolidate with Miller or any
wholly-owned Subsidiary and any Subsidiary may merge into or
consolidate with any other Person; provided further, that any
resulting or surviving entity of such a Permitted Acquisition
shall execute and deliver such agreements and other documents,
including a Guaranty if applicable, and take such other action as
the Agent may require to evidence or confirm its express
assumption of the obligations and liabilities of its predecessor
entities under the Loan Documents.
9.8. RESTRICTED PAYMENTS. Make any Restricted Payment or
apply or set apart any of their assets therefor or agree to do
any of the foregoing, provided, that, if prior to and immediately
after giving effect thereto no Default or Event of Default shall
exist, Miller may make Restricted Payments during each Fiscal
Year beginning with the 1998 Fiscal Year, in an aggregate amount
not to exceed $3,000,000.
9.9. TRANSACTIONS WITH AFFILIATES. Other than transactions
permitted under Sections 9.5, 9.6, 9.7 and 9.8, enter into any
transaction after the Closing Date, including, without
limitation, the purchase, sale, lease or exchange of property,
real or personal, or the rendering of any service, with any
Affiliate of Miller, except (a) that the Borrowers may make the
benefits of all Loans or Letters of Credit available to any or
all of the Guarantors, (b) that the Borrowers may make the
benefits of Loans or Letters of Credit in an aggregate amount not
exceeding $2,000,000 in any Fiscal Year available to any Foreign
Subsidiary, (c) that such Persons may render services to Miller
or its Subsidiaries for compensation at the same rates generally
paid by Persons engaged in the same or similar businesses for the
same or similar services, (d) that Miller or any Subsidiary may
render services to such Persons for compensation at the same
rates generally charged by Miller or such Subsidiary and (e) in
either case in the ordinary course of business and pursuant to
the reasonable requirements of Miller's (or any Subsidiary's)
business consistent with past practice of Miller and its
Subsidiaries and upon fair and reasonable terms no less favorable
to Miller (or any Subsidiary) than would be obtained in a
comparable arm's-length transaction with a Person not an
Affiliate.
9.10. COMPLIANCE WITH ERISA, THE CODE AND FOREIGN
BENEFIT LAWS. With respect to any Pension Plan, Employee Benefit
Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event
which would result in a liability on the part of Miller, any
ERISA Affiliate, or any Subsidiary to the PBGC or any
Governmental Authority, except for any Termination Event
which could not reasonably be expected to result in a
liability of $250,000 or more individually or when
aggregated with other such Termination Events; or
(b) permit the present value of all benefit
liabilities under all Employee Benefit Plans to exceed the
current value of the assets of such Employee Benefit Plans
allocable to such benefit liabilities in an amount in excess
of $250,000; or
(c) permit any accumulated funding deficiency (as
defined in Section 302 of ERISA and Section 412 of the Code)
with respect to any Pension Plan, whether or not waived,
except for any deficiency which could not reasonably be
expected to result in a liability of $250,000 or more
73<PAGE>
individually or when aggregated with any other such
deficiency under such Pension Plan or any other Pension
Plan; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which Miller or any ERISA Affiliate may
be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto, except
for any such contribution or payment which individually or
when aggregated with any other such failed contributions or
payments does not exceed $250,000; or
(e) engage, or permit Miller or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of
ERISA or Sections 4975 of the Code for which a material
civil penalty pursuant to Section 502(I) of ERISA or a
material tax pursuant to Section 4975 of the Code may be
imposed; or
(f) permit the establishment of any Employee Benefit
Plan providing post-retirement welfare benefits or establish
or amend any Employee Benefit Plan which establishment or
amendment could result in material liability to Miller or
any ERISA Affiliate or any Subsidiary or materially increase
the obligation of Miller or any ERISA Affiliate or any
Subsidiary to a Multiemployer Plan; or
(g) fail, or permit Miller or any ERISA Affiliate or
any Subsidiary to fail, to establish, maintain and operate
each Employee Benefit Plan in compliance in all material
respects with the provisions of ERISA, the Code, all
applicable Foreign Benefit Laws and all other applicable
laws and the regulations and interpretations thereof.
9.11. ACCOUNTING CHANGES. Change its Fiscal Year (other
than a change to a calendar year fiscal year) or make any change
in its accounting treatment and reporting practices except as
required by GAAP.
9.12. DISSOLUTION, ETC. Wind up, liquidate or dissolve
(voluntarily or involuntarily) or commence or suffer any
proceedings seeking any such winding up, liquidation or
dissolution, except in connection with a transaction permitted
pursuant to Section 9.7.
9.13. LIMITATIONS ON SALES AND LEASEBACKS. Enter into
any arrangement with any Person providing for the leasing by
Miller or any Subsidiary of real or personal property, whether
now owned or hereafter acquired in a related transaction or
series of related transactions, which has been or is to be sold
or transferred by Miller or any Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental
obligations of Miller or any Subsidiary; provided that the
foregoing shall not prohibit continuation by Miller of its
obligations under the Bank America Lease Transaction and the
existence of additional Off Balance Sheet Liabilities permitted
under Section 9.4(h).
74<PAGE>
9.14. CHANGE IN CONTROL. Cause, suffer or permit to
exist or occur any Change of Control.
9.15. LIMITATION ON GUARANTIES. Enter into or cause,
suffer or permit to exist any obligations of Miller or any
Subsidiary directly or indirectly guaranteeing, or in effect
guaranteeing, any Indebtedness or other obligation of any other
Person, except (i) as permitted in Section 9.4 and (ii) the
endorsement of instruments for deposit or collection in the
ordinary course of business.
9.16. NEGATIVE PLEDGE CLAUSES. Enter into or cause,
suffer or permit to exist any agreement with any Person other
than the Agent and the Lenders pursuant to this Agreement or any
other Loan Documents which prohibits or limits the ability of any
of Miller or any Subsidiary to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, in favor of the Agent
and the Lenders under the Loan Documents; provided that Miller
and any Subsidiary may enter into such an agreement in connection
with, and limited solely to, property acquired with the proceeds
of purchase money Indebtedness, the Bank America Lease
Transaction, Capital Leases or operating leases permitted
hereunder.
9.17. PREPAYMENTS, ETC. OF INDEBTEDNESS. (a) Prepay,
redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof in any manner, or make any payment in
violation of any subordination terms of, any Indebtedness other
than (i) prepayments of Indebtedness (other than Indebtedness
subordinated to Indebtedness to the Lenders) that has been
assumed by Miller or a Subsidiary in connection with a Permitted
Acquisition, (ii) prepayment of up to $20,000,000 in Indebtedness
(other than Indebtedness subordinated to Indebtedness to the
Lenders) shown on Schedule 7.6 and (iii) or prepayments of other
Indebtedness (other than Indebtedness subordinated to
Indebtedness to the Lenders) in an amount not to exceed
$5,000,000; or
(b) amend, modify or change in any manner any term or
condition of any Indebtedness described in Section 9.4(a) or any
lease so that the terms and conditions thereof are less favorable
to the Agent and the Lenders than the terms of such Indebtedness
or leases as of the Closing Date.
9.18. RESTRICTIVE AGREEMENTS. Enter into or cause,
suffer or permit to exist any agreement with any other Person
(other than the Agent and the Lenders pursuant to this Agreement
or any other Loan Document) which prohibits, limits or restricts
the ability of any Subsidiary to make any payments, directly or
indirectly, to the Borrowers by way of dividends, advances,
repayments of loans or advances, or other returns on investments,
or any other agreement or arrangement which restricts the ability
of any such Subsidiary to make any payment, directly or
indirectly, to the Borrowers.
75
<PAGE>
ARTICLE X
Events of Default and Acceleration
----------------------------------
10.1. EVENTS OF DEFAULT. If any one or more of the
following events (herein called "Events of Default") shall occur
for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any
judgment, decree or order of any court or any order, rule or
regulation of any Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual
payment of the principal of any Loan, Swing Line Loan,
Reimbursement Obligation or other Obligation, when and as
the same shall be due and payable whether pursuant to any
provision of Article II or Article III, at maturity, by
acceleration or otherwise; or
(b) if default shall be made in the due and punctual
payment of any amount of interest on any Loan, Swing Line
Loan, Reimbursement Obligation or other Obligation or of any
fees or other amounts payable to any of the Lenders or the
Agent on the date on which the same shall be due and payable
and such default shall continue for 5 days following the
date such payment is due; or
(c) if default shall be made in the performance or
observance of any covenant set forth in Section 2.3(b),
2.12, 8.7, 8.11, 8.12, 8.19, 8.22 or Article IX; or
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement
or provision contained in this Agreement or the Notes (other
than as described in clauses (a), (b) or (c) above) and such
default shall continue for thirty (30) or more days after
the earlier of receipt of notice of such default by the
Authorized Representative from the Agent or an Authorized
Representative of Miller actually becomes aware of such
default, or if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement
or provision contained in any of the other Loan Documents
(beyond any applicable grace period, if any, contained
therein) ( including without limitation failure of any
Guarantor to pay the Agent all of the Guarantors'
Obligations in accordance with, and as defined in, the
Guaranty on the Business Day on which the Agent has demanded
such payment in accordance with the terms of the Guaranty )
or in any instrument or document evidencing or creating any
obligation, guaranty, or Lien in favor of the Agent or any
of the Lenders or delivered to the Agent or any of the
Lenders in connection with or pursuant to this Agreement or
any of the Obligations, or if any Loan Document ceases to be
in full force and effect (other than by reason of any action
by the Agent or any Lender), or if without the written
consent of the Lenders, this Agreement or any other Loan
Document shall be disaffirmed or shall terminate, be
terminable or be terminated or become void or unenforceable
for any reason whatsoever (other than in accordance with its
terms in the absence of default or by reason of any action
by the Lenders or the Agent); or
76
<PAGE>
(e) if there shall occur (i) a default, which is not
waived, in the payment of any principal, interest, premium
or other amount with respect to any Indebtedness or Rate
Hedging Obligation (other than the Loans and other
Obligations) of Miller or any Subsidiary in an amount not
less than $500,000 in the aggregate outstanding, or (ii) a
default, which is not waived, in the performance, observance
or fulfillment of any term or covenant contained in any
agreement or instrument under or pursuant to which any such
Indebtedness or Rate Hedging Obligation referred to in
clause (i) may have been issued, created, assumed,
guaranteed or secured by Miller or any Subsidiary, or (iii)
any other event of default as specified in any agreement or
instrument under or pursuant to which any such Indebtedness
or Rate Hedging Obligation may have been issued, created,
assumed, guaranteed or secured by Miller or any Subsidiary,
and any such default or event of default specified in
clauses (i), (ii) or (iii) shall continue for more than the
period of grace, if any, therein specified, or such default
or event of default shall permit (or, with the giving of
notice of lapse of time or both, would permit) the holder of
any such Indebtedness or Rate Hedging Obligation (or any
agent or trustee acting on behalf of one or more holders) to
accelerate the maturity thereof; or
(f) if any representation, warranty or other statement
of fact contained in any Loan Document or in any writing,
certificate, report or statement at any time furnished to
the Agent or any Lender by or on behalf of Miller or any
other Loan Party pursuant to or in connection with any Loan
Document, or otherwise, shall be false or misleading in any
material respect when given; or
(g) if Miller or any Subsidiary shall be unable to pay
its debts generally as they become due; file a petition to
take advantage of any insolvency statute; make an assignment
for the benefit of its creditors; commence a proceeding for
the appointment of a receiver, trustee, liquidator or
conservator of itself or of the whole or any substantial
part of its property; file a petition or answer seeking
liquidation, reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable
law or statute; or
(h) if a court of competent jurisdiction shall enter
an order, judgment or decree appointing a custodian,
receiver, trustee, liquidator or conservator of Miller or
any Subsidiary or other Loan Party or of the whole or any
substantial part of its properties and such order, judgment
or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against Miller
or any Subsidiary or other Loan Party seeking liquidation,
reorganization or arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state, which
petition is not dismissed within sixty (60) days; or if,
under the provisions of any other law for the relief or aid
of debtors, a court of competent jurisdiction shall assume
custody or control of Miller or any Subsidiary or other Loan
Party or of the whole or any substantial part of its
properties, which control is not relinquished within sixty
(60) days; or if there is commenced against Miller or any
Subsidiary or any other Loan Party any proceeding or
77<PAGE>
petition seeking reorganization, arrangement or similar
relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or
any state which proceeding or petition remains undismissed
for a period of sixty (60) days; or if Miller or any
Subsidiary or any other Loan Party takes any action to
indicate its consent to or approval of any such proceeding
or petition; or
(i) if (i) one or more judgments or orders for the
payment of money where the amount not covered by insurance
(or the amount as to which the insurer is found not to be
liable for) is in excess of $250,000 is rendered against
Miller or any Subsidiary, or (ii) there is any attachment,
injunction or execution against any of Miller's or
Subsidiaries' properties for any amount in excess of
$250,000 in the aggregate; and such judgment, attachment,
injunction or execution remains unpaid, unstayed,
undischarged, unbonded or undismissed for a period of thirty
(30) days; or
(j) if Miller or any Subsidiary shall, other than in
the ordinary course of business (as determined by past
practices) or except as permitted by Section 9.7, suspend
all or any part of its operations material to the conduct of
the business of Miller or such Subsidiary for a period of
more than sixty (60) days; or
(k) any actual or asserted invalidity (other than by
the Agent or Lenders) of the Loan Documents shall occur; or
(l) if there shall occur any Termination Event which
could reasonably be expected to result in a liability of
$250,000 or more for Miller or any Subsidiary; or
(m) there shall occur any Change in Control;
then, and in any such event and at any time thereafter, if such
Event of Default or any other Event of Default shall be
continuing and shall have not been waived,
(A) either or both of the following actions may
be taken: (i) the Agent, with the consent of the
Required Lenders, may, and at the direction of the
Required Lenders shall, declare any obligation of the
Lenders, the Swing Line Lender and the Issuing Bank to
make further Loans and Swing Line Loans or to issue
additional Letters of Credit terminated, whereupon the
obligation of each Lender to make further Loans, of the
Swing Line Lender to make further Swing Line Loans and
of the Issuing Bank to issue additional Letters of
Credit, hereunder shall terminate immediately, and
(ii) the Agent shall at the direction of the Required
Lenders, at their option, declare by notice to the
Borrowers any or all of the Obligations to be
immediately due and payable, and the same, including
all interest accrued thereon and all other obligations
of the Borrowers to the Agent and the Lenders, shall
forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality
of any kind, all of which are hereby expressly waived,
anything contained herein or in any instrument
evidencing the Obligations to the contrary notwith-
78<PAGE>
standing; provided, however, that notwithstanding the
above, if there shall occur an Event of Default under
clause (g) or (h) above, then the obligation of the
Lenders to make Loans, of the Swing Line Lender to make
Swing Line Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall automatically
terminate and any and all of the Obligations shall be
immediately due and payable without the necessity of
any action by the Agent or the Required Lenders or
notice by or to the Agent or the Lenders;
(B) the Borrowers shall, upon demand of the
Agent, the Issuing Bank or the Required Lenders,
deposit cash with the Agent in an amount equal to the
amount of any Letter of Credit Outstandings, as
collateral security for the repayment of any future
drawings or payments under such Letters of Credit, and
such amounts shall be held by the Agent pursuant to the
terms of the LC Account Agreement; and
(C) the Agent and each of the Lenders shall have
all of the rights and remedies available under the Loan
Documents or under any applicable law.
10.2. AGENT TO ACT. In case any one or more Events of
Default shall occur and not have been waived or cured, the Agent
may, and at the direction of the Required Lenders shall, proceed
to protect and enforce their rights or remedies either by suit in
equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision
contained herein or in any other Loan Document, or to enforce the
payment of the Obligations or any other legal or equitable right
or remedy.
10.3. CUMULATIVE RIGHTS. No right or remedy herein
conferred upon the Lenders or the Agent is intended to be
exclusive of any other rights or remedies contained herein or in
any other Loan Document, and every such right or remedy shall be
cumulative and shall be in addition to every other such right or
remedy contained herein and therein or now or hereafter existing
at law or in equity or by statute, or otherwise.
10.4. NO WAIVER. No course of dealing between the
Borrowers and any Lender, the Swing Line Lender, the Issuing Bank
or the Agent or any failure or delay on the part of any Lender,
the Swing Line Lender, the Issuing Bank or the Agent in
exercising any rights or remedies under any Loan Document or
otherwise available to it shall operate as a waiver of any rights
or remedies and no single or partial exercise of any rights or
remedies shall operate as a waiver or preclude the exercise of
any other rights or remedies hereunder or of the same right or
remedy on a future occasion.
10.5. ALLOCATION OF PROCEEDS. If an Event of Default
has occurred and not been waived, and the maturity of the Notes
has been accelerated pursuant to Article X hereof, all payments
received by the Agent hereunder, in respect of any principal of
or interest on the Obligations or any other amounts payable by
the Borrowers hereunder, shall be applied by the Agent in the
following order:
(a) amounts due to the Lenders (including the Issuing
Bank) pursuant to Sections 2.10, 3.3 and 12.5;
(b) amounts due to the Agent pursuant to Sections 2.15
and 11.8;
79<PAGE>
(c) payments of interest on Loans, Swing Line Loans
and Reimbursement Obligations, to be applied for the ratable
benefit of the Lenders (with amounts payable in respect of
Swing Line Outstandings being included in such calculation
and paid to the Swing Line Lender);
(d) payments of principal of Loans, Swing Line Loans
and Reimbursement Obligations, to be applied for the ratable
benefit of the Lenders (with amounts payable in respect of
Swing Line Outstandings being included in such calculation
and paid to the Swing Line Lender);
(e) payments of cash amounts to the Agent in respect
of outstanding Letters of Credit pursuant to Section
10.1(B);
(f) amounts due to the Lenders pursuant to Sections
3.2(g), 8.15 and 12.9;
(g) payments of all other Obligations due under any of
the Loan Documents, if any, to be applied for the ratable
benefit of the Lenders;
(h) amounts due to any of the Lenders in respect of
Obligations consisting of liabilities under any Swap
Agreement with any of the Lenders on a pro rata basis
according to the amounts owed; and
(i) any surplus remaining after application as
provided for herein, to the Borrowers or otherwise as may be
required by applicable law.
10.6. JUDGMENT CURRENCY. The Borrowers, the Agent and
each Lender hereby agree that if, in the event that a judgment is
given in relation to any sum due to the Agent or any Lender
hereunder, such judgment is given in a currency (the "Judgment
Currency") other than that in which such sum was originally
denominated (the "Original Currency"), the Borrowers agree to
indemnify the Agent or such Lender, as the case may be, to the
extent that the amount of the Original Currency which could have
been purchased by the Agent in accordance with normal banking
procedures on the Business Day following receipt of such sum is
less than the sum which could have been so purchased by the Agent
had such purchase been made on the day on which such judgment was
given or, if such day is not a Business Day, on the Business Day
immediately preceding the giving of such judgment, and if the
amount so purchased exceeds the amount which could have been so
purchased by the Agent had such purchase been made on the day on
which such judgment was given or, if such day is not a Business
Day, on the Business Day immediately preceding such judgment, the
Agent or the applicable Lenders agrees to remit such excess to
the Borrowers. The agreements in this Section shall survive
payment of all Obligations.
80
<PAGE>
ARTICLE XI
The Agent
---------
11.1. APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender,
the Swing Line Lender and the Issuing Bank hereby irrevocably
appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and
discretion as are specifically delegated to the Agent by the
terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto. The
Agent (which term as used in this sentence and in Section 11.5
and the first sentence of Section 11.6 hereof shall include its
affiliates and its own and its affiliates' officers, directors,
employees, and agents): (a) shall not have any duties or
responsibilities except those expressly set forth in this
Agreement and shall not be a trustee or fiduciary for any Lender,
the Swing Line Lender or the Issuing Bank; (b) shall not be
responsible to the Lenders for any recital, statement,
representation, or warranty (whether written or oral) made in or
in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of
them under, any Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any
Loan Document, or any other document referred to or provided for
therein or for any failure by any Loan Party or any other Person
to perform any of its obligations thereunder; (c) shall not be
responsible for or have any duty to ascertain, inquire into, or
verify the performance or observance of any covenants or
agreements by any Loan Party or the satisfaction of any condition
or to inspect the property (including the books and records) of
any Loan Party or any of its Subsidiaries or affiliates; (d)
shall not be required to initiate or conduct any litigation or
collection proceedings under any Loan Document; and (e) shall not
be responsible to any Lender for any action taken or omitted to
be taken by it under or in connection with any Loan Document,
except for its own gross negligence or willful misconduct. The
Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents
or attorneys-in-fact selected by it with reasonable care. Each
Lender hereby irrevocably designates and appoints NationsBank as
the Agent for the Lenders under this Agreement, and each of the
Lenders hereby irrevocably authorizes NationsBank as the Agent
for such Lender, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to
exercise such powers as are expressly delegated to the Agent by
the terms of this Agreement and such other Loan Documents,
together with such other powers as are reasonably incidental
thereto. The Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any of the Lenders, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent.
11.2. RELIANCE BY AGENT. The Agent shall be entitled to
rely upon any certification, notice, instrument, writing or other
communication (including, without limitation, any thereof by
telephone or telefacsimile) believed by it to be genuine and
correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel for any Loan Party), independent
accountants and other experts selected by the Agent. The Agent
may deem and treat the payee of any Note as the holder thereof
for all purposes hereof unless and until the Agent receives and
accepts an Assignment and Acceptance executed in accordance with
Section 12.1 hereof. As to any matters not expressly provided
for by this Agreement, the Agent shall not be required to
exercise any discretion or take any action, but shall be required
81<PAGE>
to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding on
all of the Lenders; provided, however, that the Agent shall not
be required to take any action that exposes the Agent to personal
liability or that is contrary to any Loan Document or applicable
law unless it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may
be incurred by it by reason of taking any such action.
11.3. DEFAULTS. The Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of
Default unless the Agent has received written notice from a
Lender or the Borrowers specifying such Default or Event of
Default and stating that such notice is a "Notice of Default".
In the event that the Agent receives such a notice of the
occurrence of a Default or Event of Default, the Agent shall give
prompt notice thereof to the Lenders. The Agent shall (subject
to Section 11.2 hereof) take such action with respect to such
Default or Event of Default as shall reasonably be directed by
the Required Lenders, provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not
be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it
shall deem advisable in the best interest of the Lenders.
11.4. RIGHTS AS LENDER. With respect to its Revolving
Credit Commitment and the Loans made by it, NationsBank (and any
successor acting as Agent) in its capacity as a Lender hereunder
shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as
the Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Agent in its individual
capacity. NationsBank (and any successor acting as Agent) and
its affiliates may (without having to account therefor to any
Lender) accept deposits from, lend money to, make investments in,
provide services to, and generally engage in any kind of lending,
trust or other business with any Loan Party or any of its
Subsidiaries or affiliates as if it were not acting as Agent, and
NationsBank (and any successor acting as Agent) and its
affiliates may accept fees and other consideration from any Loan
Party or any of its Subsidiaries or affiliates for services in
connection with this Agreement or otherwise without having to
account for the same to the Lenders.
11.5. INDEMNIFICATION. The Lenders agree to indemnify
the Agent (to the extent not reimbursed under Section 12.9
hereof, but without limiting the obligations of the Borrowers
under such Section) ratably in accordance with their respective
Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including attorneys' fees), or
disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Agent (including
by any Lender) in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action
taken or omitted by the Agent under any Loan Document; provided
82<PAGE>
that no Lender shall be liable for any of the foregoing to the
extent they arise from the gross negligence or willful misconduct
of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any costs or expenses
payable by the Borrowers under Section 12.5, to the extent that
the Agent is not promptly reimbursed for such costs and expenses
by the Borrowers. The agreements contained in this Section shall
survive payment in full of the Loans and all other amounts
payable under this Agreement.
11.6. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each
Lender agrees that it has, independently and without reliance on
the Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit
analysis of the Loan Parties and their Subsidiaries and decision
to enter into this Agreement and that it will, independently and
without reliance upon the Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own analysis and decisions in
taking or not taking action under the Loan Documents. Except for
notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Agent hereunder,
the Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the
affairs, financial condition or business of any Loan Party or any
of its Subsidiaries or affiliates that may come into the
possession of the Agent or any of its affiliates.
11.7. RESIGNATION OF AGENT. The Agent may resign at any
time by giving notice thereof to the Lenders and the Borrowers.
Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Agent meeting the requirements set
forth herein. The Borrowers shall have the right to approve such
Agent so long as no Default or Event of Default exist. If no
successor Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty
(30) days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent which shall be a commercial
bank organized under the laws of the United States of America
having combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a
successor, such successor shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and
duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions
of this Article XI shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while
it was acting as Agent.
11.8. FEES. The Borrowers agree to pay to the Agent,
for its individual account, an Agent's fee as from time to time
agreed to by the Borrowers and Agent in writing.
83
<PAGE>
ARTICLE XII
Miscellaneous
-------------
12.1. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender
may assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Loans, its Notes and
its Revolving Credit Commitment); provided, however, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, any such partial assignment
shall be in an amount at least equal to $5,000,000 or an integral
multiple of $5,000,000 (or, if less, the entire remaining amount
of such Lender's Revolving Credit Commitment) in excess thereof;
(iii) each such assignment by a Lender shall be of
a constant, and not varying, percentage of all of its rights and
obligations under the Revolving Credit Facility and Letter of
Credit Facility and the Note; and
(iv) the parties to such assignment shall execute and
deliver to the Agent for its acceptance an Assignment and
Acceptance in the form of Exhibit B hereto, together with any
Note subject to such assignment and a processing fee of $3,500;
provided, that in the case of contemporaneous assignments by a
Lender to more than one fund managed by or advised by the same
investment advisor (which funds are not then Lenders hereunder),
only a single $3,500 fee shall be payable for all such
contemporaneous assignments; and provided further, that no such
fee shall be payable by any Lender in connection with the
original issue of the Notes on the Closing Date.
Upon execution, delivery and acceptance of such Assignment
and Acceptance, the assignee thereunder shall be a party hereto
and, to the extent of such assignment, have the obligations,
rights, and benefits of a Lender hereunder and the assigning
Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement.
Upon the consummation of any assignment pursuant to this Section,
the assignor, the Agent and the Borrowers shall make appropriate
arrangements so that, if required, new Notes are issued to the
assignor and the assignee. If the assignee is not incorporated
under the laws of the United States of America or a state
thereof, it shall deliver to the Borrowers and the Agent
certification as to exemption from deduction or withholding of
Taxes in accordance with Section 5.6.
(b) The Agent shall maintain at its address referred to in
Section 12.2 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the
names and addresses of the Lenders and the Revolving Credit
Commitment of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrowers, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrowers or
84<PAGE>
any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance
executed by the parties thereto, together with any Note subject
to such assignment and payment of the processing fee, the Agent
shall, if such Assignment and Acceptance has been completed and
is in substantially the form of Exhibit B hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to
the parties thereto.
(d) Each Lender may sell participations at its expense to
one or more Persons in all or a portion of its rights and
obligations under this Agreement (including all or a portion of
its Revolving Credit Commitment or its Loans); provided, however,
that (i) such Lender s obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of
such obligations, (iii) the Borrowers shall continue to deal
solely and directly with such Lender in connection with such
Lender s rights and obligations under this Agreement, and such
Lender shall retain the sole right to enforce the obligations of
the Borrowers relating to its Loans and its Note and to approve
any amendment, modification or waiver of any provision of this
Agreement (other than amendments, modifications or waivers
decreasing the amount of principal of or the rate at which
interest is payable on such Loans or Note, extending any
scheduled principal payment date or date fixed for the payment of
interest on such Loans or Note, or extending its Revolving Credit
Commitment) and (iv) the sale of any such participation which
requires the Borrowers to file a registration statement with
federal or state regulatory authorities shall not be permitted.
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or
any portion of its Loans and its Note to any Federal Reserve Bank
as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank. No such assignment
shall release the assigning Lender from its obligations
hereunder.
(f) Any Lender may furnish any information concerning
Miller or any of its Subsidiaries in the possession of such
Lender from time to time to assignees and participants (including
prospective assignees and participants) so long as such Lender
shall require in writing (which writing names the Borrowers as
third party beneficiaries thereof) any such assignee or
participant or prospective assignee or participant to maintain
the confidentiality of any information delivered to it which is
not publicly available.
(g) The Borrowers may not assign, nor shall they cause,
suffer or permit any Guarantor to assign, any rights, powers,
duties or obligations under this Agreement or the other Loan
Documents without the prior written consent of all the Lenders.
12.2. NOTICES. Any notice shall be conclusively deemed
to have been received by any party hereto and be effective (i) on
the day on which delivered (including hand delivery by commercial
courier service) to such party (against receipt therefor), (ii)
on the date of receipt at such address, telefacsimile number or
telex number as may from time to time be specified by such party
85<PAGE>
in written notice to the other parties hereto or otherwise
received), in the case of notice by telegram or telefacsimile,
respectively (where the receipt of such message is verified by
return), or (iii) on the fifth Business Day after the day on
which mailed, if sent prepaid by certified or registered mail,
return receipt requested, in each case delivered, transmitted or
mailed, as the case may be, to the address or telefacsimile
number, as appropriate, set forth below or such other address or
number as such party shall specify by notice hereunder:
(a) if to the Borrowers or any Guarantor:
Miller Industries, Inc.
8503 Hilltop Drive
Ooltewah, Tennessee 37363
Attention: Chief Financial Officer
Telephone: (423) 238-4171
Telefacsimile: (423) 238-6874
(b) if to the Agent:
NationsBank of Tennessee, National Association
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 388-6482
Telefacsimile: (704) 388-9436
with a copy to:
NationsBank of Tennessee, National Association
633 Chestnut Street
Chattanooga, Tennessee 37450-004
Attention: Commercial Banking
Telephone: (423) 755-0663
Telefacsimile: (423) 755-0689; and
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each
Assignment and Acceptance.
12.3. RIGHT OF SET-OFF; ADJUSTMENTS. (a) Upon the
occurrence and during the continuance of any Event of Default,
each Lender (and each of its affiliates) is hereby authorized at
any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Lender (or any
of its affiliates) to or for the credit or the account of the
Borrowers against any and all of the obligations of the Borrowers
now or hereafter existing under this Agreement and the Note held
86<PAGE>
by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Note and although
the payment of such obligations may not have been accelerated.
Each Lender agrees promptly to notify the Borrowers after any
such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each
Lender under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off)
that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of the Loans owing to it, or
interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, or otherwise),
in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a
participation interest in such portion of each such other
Lender's Loans owing to it, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefitted Lender to
share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is
thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest. The
Borrowers agree that any Lender so purchasing a participation
from a Lender pursuant to this Section 12.3 may, to the fullest
extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such
participation as fully as if such Person were the direct creditor
of either of the Borrowers in the amount of such participation.
12.4. SURVIVAL. All covenants, agreements,
representations and warranties made herein shall survive the
making by the Lenders of the Loans and by the Swing Line Lender
of the Swing Line Loans and the issuance of the Letters of Credit
and the execution and delivery to the Lenders of this Agreement
and the Notes and shall continue in full force and effect so long
as any of Obligations remain outstanding or any Lender has any
commitment hereunder or the Borrowers have continuing obligations
hereunder unless otherwise provided herein. Whenever in this
Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and permitted
assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrowers which are contained
in the Loan Documents shall inure to the benefit of the
successors and permitted assigns of the Lenders or any of them.
12.5. EXPENSES. The Borrowers agree to pay on demand
all reasonable costs and expenses of the Agent and NMS in
connection with the syndication, preparation, execution and
delivery of this Agreement, the other Loan Documents, and the
other documents to be delivered hereunder, including, without
limitation, the reasonable fees and expenses of Smith Helms
Mulliss & Moore, L.L.P., counsel for the Agent, with respect
87<PAGE>
thereto and with respect to advising the Agent as to its rights
and responsibilities under the Loan Documents. The Borrowers
further agree to pay on demand all reasonable costs and expenses
of the Agent, including, without limitation, the reasonable fees
and expenses of counsel for the Agent, in connection with any
future modification or amendment of this Agreement, the other
Loan Documents and the other documents delivered hereunder. The
Borrowers further agree to pay on demand all reasonable costs and
expenses of the Agent and the Lenders, if any (including, without
limitation, reasonable attorneys' fees and expenses and the cost
of internal counsel), in connection with the enforcement (whether
through negotiations, legal proceedings, or otherwise) of the
Loan Documents and the other documents to be delivered hereunder.
12.6. AMENDMENTS AND WAIVERS. Any provision of this
Agreement or any other Loan Document may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed
by the Borrowers and the Required Lenders (and, if Article XI or
the rights or duties of the Agent are affected thereby, by the
Agent); provided that no such amendment or waiver shall, unless
signed by all the Lenders, (i) increase the Revolving Credit
Commitments of the Lenders, (ii) reduce the principal of or rate
of interest on any Loan or any fees or other amounts payable
hereunder, (iii) postpone any date fixed for the payment of any
scheduled installment of principal of or interest on any Loan or
any fees or other amounts payable hereunder or for termination of
any Revolving Credit Commitment, (iv) change the percentage of
the Revolving Credit Commitments or of the unpaid principal
amount of the Notes, or the number of Lenders, which shall be
required for the Lenders or any of them to take any action under
this Section or any other provision of this Agreement or (v)
release any Guarantor or Pledged Stock or any Liens upon or other
rights in all or any material portion of any other Collateral;
and provided, further, that no such amendment or waiver which
affects the rights, privileges, or obligations of the Issuing
Bank, as issuer of Letters of Credit, shall be effective unless
signed in writing by the Issuing Bank, or that affects the
rights, privileges or obligations of the Swing Line Lender, as
provider of Swing Line Loans, shall be effective unless signed in
writing by the Swing Line Lender.
Notwithstanding any provision of the other Loan Documents to
the contrary, as between the Agent and the Lenders, execution by
the Agent shall not be deemed conclusive evidence that the Agent
has obtained the written consent of the Required Lenders. No
notice to or demand on the Borrowers in any case shall entitle
the Borrowers to any other or further notice or demand in similar
or other circumstances, except as otherwise expressly provided
herein. No delay or omission on any Lender's or the Agent's part
in exercising any right, remedy or option shall operate as a
waiver of such or any other right, remedy or option or of any
Default or Event of Default.
12.7. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account
for more than one such fully-executed counterpart.
12.8. TERMINATION. The termination of this Agreement
shall not affect any rights of the Borrowers, the Lenders or the
Agent or any obligation of the Borrowers, the Lenders or the
Agent, arising prior to the effective date of such termination,
and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or
obligations incurred prior to such termination have been fully
disposed of, concluded or liquidated and the Obligations arising
prior to or after such termination have been irrevocably paid in
full. The rights granted to the Agent for the benefit of the
Lenders under the Loan Documents shall continue in full force and
effect, notwithstanding the termination of this Agreement, until
all of the Obligations have been paid in full after the
termination hereof (other than Obligations in the nature of
continuing indemnities or expense reimbursement obligations not
88<PAGE>
yet due and payable, which shall continue) or the Borrowers have
furnished the Lenders and the Agent with an indemnification
satisfactory to the Agent and each Lender with respect thereto.
All representations, warranties, covenants, waivers and
agreements contained herein shall survive termination hereof
until payment in full of the Obligations unless otherwise
provided herein. Notwithstanding the foregoing, if after receipt
of any payment of all or any part of the Obligations, any Lender
is for any reason compelled to surrender such payment to any
Person because such payment is determined to be void or voidable
as a preference, impermissible setoff, a diversion of trust funds
or for any other reason, this Agreement shall continue in full
force and the Borrowers shall be liable to, and shall indemnify
and hold the Agent or such Lender harmless for, the amount of
such payment surrendered until the Agent or such Lender shall
have been finally and irrevocably paid in full. The provisions
of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by
the Agent or the Lenders in reliance upon such payment, and any
such contrary action so taken shall be without prejudice to the
Agent or the Lenders' rights under this Agreement and shall be
deemed to have been conditioned upon such payment having become
final and irrevocable.
12.9. INDEMNIFICATION. (a) The Borrowers agree to
indemnify and hold harmless the Agent, the Issuing Bank, the
Swing Line Lender, NMS and each Lender and each of their
affiliates and their respective attorneys, officers, directors
and employees (each, an "Indemnified Party") from and against any
and all claims, damages, losses, liabilities, costs, and expenses
(including, without limitation, reasonable attorneys' fees) that
may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any
investigation, litigation, or proceeding or preparation of
defense in connection therewith) the Loan Documents, any of the
transactions contemplated herein or the actual or proposed use of
the proceeds of the Loans, except to the extent such claim,
damage, loss, liability, cost, or expense is finally judicially
determined to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the
indemnity in this Section 12.9(a) applies, such indemnity shall
be effective whether or not such investigation, litigation or
proceeding is brought by the Borrowers, its directors,
shareholders or creditors or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are
consummated.
(b) Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and
obligations of the Borrowers contained in this Section 12.9 shall
survive the payment in full of the Loans and all other amounts
payable under this Agreement and the Notes.
12.10. SEVERABILITY. If any provision of this Agreement
or the other Loan Documents shall be determined to be illegal or
invalid as to one or more of the parties hereto, then such
provision shall remain in effect with respect to all parties, if
any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain
effective and binding on the parties hereto.
12.11. ENTIRE AGREEMENT. This Agreement, together with
the other Loan Documents, constitutes the entire agreement among
the parties with respect to the subject matter hereof and
supersedes all previous proposals, negotiations, representations,
89<PAGE>
commitments and other communications between or among the
parties, both oral and written, with respect thereto.
12.12. AGREEMENT CONTROLS. In the event that any term of
any of the Loan Documents other than this Agreement conflicts
with any express term of this Agreement, the terms and provisions
of this Agreement shall control to the extent of such conflict.
12.13. USURY SAVINGS CLAUSE. Notwithstanding any other
provision herein, the aggregate interest rate charged under any
of the Notes or other Loan Documents, including all charges or
fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as
such term is defined below). If the rate of interest (determined
without regard to the preceding sentence) under this Agreement or
other Loan Documents at any time exceeds the Highest Lawful Rate,
the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would
have been due hereunder if the stated rates of interest set forth
in this Agreement or other Loan Documents had at all times been
in effect. In addition, if when the Loans made hereunder are
repaid in full the total interest due hereunder (taking into
account the increase provided for above) is less than the total
amount of interest which would have been due hereunder if the
stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the
Borrowers shall pay to the Agent an amount equal to the
difference between the amount of interest paid and the amount of
interest which would have been paid if the Highest Lawful Rate
had at all times been in effect. Notwithstanding the foregoing,
it is the intention of the Lenders and the Borrowers to conform
strictly to any applicable usury laws. Accordingly, if any
Lender contracts for, charges, or receives any consideration
which constitutes interest in excess of the Highest Lawful Rate,
then any such excess shall be cancelled automatically and, if
previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to
the Borrowers. As used in this paragraph, the term "Highest
Lawful Rate" means the maximum lawful interest rate, if any, that
at any time or from time to time may be contracted for, charged,
or received under the laws applicable to such Lender which are
presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow
a higher maximum nonusurious interest rate than applicable laws
now allow.
12.14. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER
THAN CERTAIN PLEDGE AGREEMENTS COVERING SHARES OF DIRECT
FOREIGN SUBSIDIARIES) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA APPLICABLE
TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY OUTSIDE
SUCH STATE.
(b) THE BORROWERS HEREBY EXPRESSLY AND IRREVOCABLY
AGREE AND CONSENT THAT ANY SUIT, ACTION OR PROCEEDING
90<PAGE>
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF HAMILTON,
STATE OF TENNESSEE, UNITED STATES OF AMERICA OR THE COUNTY
OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF
AMERICA, AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE BORROWERS EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING, AND EACH OF THE BORROWERS HEREBY IRREVOCABLY
SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF
ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWERS AGREE THAT SERVICE OF PROCESS MAY BE
MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE
PREPAID) TO THE ADDRESS OF THE BORROWERS PROVIDED IN SECTION
12.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER
THE APPLICABLE LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) OR (b) HEREOF
SHALL PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENT IN THE COURTS OF ANY JURISDICTION WHERE THE
BORROWERS OR ANY OF THE BORROWERS' PROPERTY OR ASSETS MAY BE
FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT
OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION THEREWITH, THE BORROWERS, THE AGENT AND THE
LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION OR
PROCEEDING.
12.15. PAYMENTS. All principal, interest and other
amounts to be paid by the Borrowers under this Agreement and the
other Loan Documents shall be made to the Agent at the Principal
Office in Dollars and in immediately available funds, without
setoff, deduction or counterclaim. Subject to the definition of
"Interest Period," whenever any payment under this Agreement or
any other Loan Document shall be stated to be due on a day that
is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time in such case
shall be included in the computation of interest and fees, as
applicable, and as the case may be.
91<PAGE>
12.16. SUBORDINATION. Until the Obligations are paid in
full and the Agent and the Lenders are under no further
obligation to lend or extend funds or credit which would
constitute Obligations, the Borrowers hereby unconditionally
subordinate all present and future debts, liabilities or
obligations of any Guarantor or any Subsidiary which is not a
Guarantor, as the case may be, to the Borrowers to the
Obligations, and all amounts due under such debts, liabilities,
or obligations shall, upon the occurrence and during the
continuance of an Event of Default, be collected for and upon
request of Agent paid over forthwith to the Agent, for the
benefit of the Lenders, on account of the Obligations and,
pending such payment, shall be held by the Borrowers as agent and
bailee of the Agent and the Lenders separate and apart from all
other funds, property and accounts of the Borrowers. The
Borrowers shall execute such further documents in favor of the
Agent, for the benefit of the Lenders, to further evidence and
support the purpose of this Section 12.16. The Borrowers hereby
irrevocably waive and release any right or rights of subrogation
or contribution existing at law, by contract or otherwise to
recover all or any portion of any payment made hereunder from any
Guarantor unless and until the Obligations are paid in full and
the Agent and the Lenders are under no further obligation to lend
or extend further credit which would constitute Obligations.
12.17. JOINT AND SEVERAL OBLIGATIONS. All Loans and
Advances by the Lenders, all Swing Line Loans by the Swing Line
Lender and all Letters of Credit issued by the Issuing Bank to
Borrowers under this Agreement and the Obligations shall
constitute one joint and several general obligation of each of
the Borrowers. The Agent will maintain a single loan account for
Advances to the Borrowers, and each Borrower shall be jointly and
severally liable to the Lenders for all Obligations hereunder,
regardless of whether such Obligations arise as a result of
Advances to such Borrower, it being stipulated and agreed that
Advances hereunder to any Borrower inure to the benefit of each
of the Borrowers, and that the Lenders are relying on the joint
and several liability of the Borrowers in extending credit
hereunder. Each Borrower agrees that the joint and several
liability of the Borrowers shall not be impaired or affected by
any modification, supplement, extension or amendment of any
contract or agreement to which the parties thereto may hereafter
agree, nor by any delay, extension of time, renewal, compromise
or other indulgence granted by the Lenders or the Issuing Bank
with respect to any of the Obligations, nor by any other
agreements or arrangements whatever with the Borrowers, each
Borrower hereby waiving all notice of any such delay, extension,
release, substitution, renewal, compromise or other indulgence,
and hereby consenting to be bound thereby as fully and
effectually as if it had expressly agreed thereto in advance.
The liability of each Borrower hereunder is direct and
unconditional as to all of the Obligations hereunder, and may be
enforced without requiring the Lenders or the Issuing Bank first
to resort to any other right, remedy or security; neither
Borrower shall have any right of subrogation, reimbursement or
indemnity whatsoever, nor any right of recourse to security for
any of the Obligations hereunder, unless and until all of said
Obligations have been paid in full; nothing shall discharge or
satisfy the liability of either Borrower hereunder except the
full payment and performance of all of the Obligations; any and
all present and future debts and obligations of each Borrower to
92<PAGE>
the other Borrower are hereby waived and postponed in favor of
and subordinated to the full payment and performance of all
present and future obligations of the Borrowers to the Lenders
and the Issuing Bank
[Signatures on following pages]
93
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be made, executed and delivered by their duly
authorized officers as of the day and year first above written.
MILLER INDUSTRIES, INC.
By: /s/ Jeffrey I. Badgley
Name: Jeffrey I. Badgley
Title: President & CEO
MILLER INDUSTRIES TOWING
EQUIPMENT INC.
By: /s/ Adam Dunayer
Name: Adam Dunayer
Title: Vice President
NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as Agent for the Lenders
By: /s/ Gregory E. Merriman
Name: Gregory E. Merriman
Title: Commercial Banking Officer
Signature Page 1 of 5<PAGE>
NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION
By: /s/ Gregory E. Merriman
Name: Gregory E. Merriman
Title: Commercial Banking Officer
Lending Office:
NationsBank, National Association
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: ________________
Telefacsimile: ______________
Wire Transfer Instructions:
NationsBank, National
Association
ABA # ______________________
Account No.: _________________
Reference: ___________________
Attention: ____________________
Signature Page 2 of 5<PAGE>
BANK OF AMERICA, FSB
By: /s/ Howard Kim
Name: Howard Kim
Title: Vice President
Lending Office:
Bank of America
1230 Peachtree Street
Suite 3600
Atlanta, Georgia 30309
Attention: Howard Kim
Telephone: (404) 815-5926
Telefacsimile: (404) 815-5919
Wire Transfer Instructions:
Bank of America, NTSA
ABA # 12100358
Account No.: 15919 84033
Reference: Miller Industries,
Inc.
Attention: Mary Nelson
Signature Page 3 of 5<PAGE>
WACHOVIA BANK, N.A.
By: /s/ John B. Tibe
Name: John B. Tibe
Title: Assistant Vice President
Lending Office:
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
29th Floor
Atlanta, Georgia 30303
Attention: John B. Tibe
Telephone: (404) 332-1040
Telefacsimile: (404) 332-5016
Wire Transfer Instructions:
Wachovia Bank, N.A.
ABA # 061000010
Account No.: 18-800-621
Reference: ___________________
Attention: Adrienne
Durham/Karen Matthews
Signature Page 4 of 5<PAGE>
FIRST AMERICAN NATIONAL BANK
By: /s/ Mary E. Buckner
Name: Mary E. Buckner
Title: Vice President
Lending Office:
First American National Bank
1 Union Square, Suite 100
Chattanooga, Tennessee 37402
Attention: Mary E. Buckner
Telephone: (423) 755-6022
Telefacsimile: (423) 755-6014
Wire Transfer Instructions:
First American National Bank
ABA # 064000017
Account No.: 1002295498
Reference: Miller Industries
Attention: Commercial Loan
Operations
Signature Page 5 of 5<PAGE>
EXHIBIT A
Applicable Commitment Percentages
Lender Revolving Applicable
- ------ Credit Commitment
Commitment Percentage
---------- ----------
NationsBank of Tennessee,
National Association $65,000,000 43.3333333%
Bank of America, FSB $42,500,000 28.3333333%
Wachovia Bank, N.A. $30,000,000 20.0000000%
First American National Bank $12,500,000 8.3333333%
A-1<PAGE>
EXHIBIT B
Form of Assignment and Acceptance
DATED _______________,_____
Reference is made to the Credit Agreement dated as of
January 30, 1998 (the "Agreement") among MILLER INDUSTRIES, INC.,
a Tennessee corporation ("Miller"), MILLER INDUSTRIES TOWING
EQUIPMENT INC., a Delaware Corporation ("Miller Towing," and
together with Miller, the "Borrowers"), the Lenders (as defined
in the Agreement), and NationsBank of Tennessee, National
Association, as Agent for the Lenders ("Agent"). Unless
otherwise defined herein, terms defined in the Agreement are used
herein with the same meanings.
The "Assignor" and the "Assignee" referred to on Schedule 1
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
WITHOUT RECOURSE and without representation or warranty except as
expressly set forth herein, and the Assignee hereby purchases and
assumes from the Assignor, an interest in and to the Assignor's
rights and obligations under the Credit Agreement and the other
Loan Documents as of the date hereof equal to the percentage
interest in the Revolving Credit Commitment specified on Schedule
1. After giving effect to such sale and assignment, the
Assignee's Revolving Credit Commitment and the amount of the
Loans owing to the Assignee will be as set forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any
other instrument or document furnished pursuant thereto; (iii)
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its
obligations under the Loan Documents or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Note
or Notes held by the Assignor and requests that the Agent
exchange such Note or Notes for new Notes payable to the order of
the Assignee in an amount equal to the Revolving Credit
Commitment assumed by the Assignee pursuant hereto and to the
Assignor in an amount equal to the Revolving Credit Commitment
retained by the Assignor, if any, as specified on Schedule 1.
3. The Assignee (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial
statements referred to in Section 8.1 thereof and such other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor
or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the
Credit Agreement; (iii) confirms that it is an Eligible Assignee;
(iv) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion
B-1<PAGE>
under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it
as a Lender; and (vi) attaches any U.S. Internal Revenue Service
or other forms required under Section 5.6.
4. Following the execution of this Assignment and
Acceptance, it will be delivered to the Agent for acceptance and
recording by the Agent and approval by Miller if required under
the Credit Agreement. The effective date for this Assignment and
Acceptance (the "Effective Date") shall be the date of acceptance
hereof by the Agent and approval by Miller if required under the
Credit Agreement, unless otherwise specified on Schedule 1.
5. Upon such acceptance and recording by the Agent and
approval by Miller if required under the Credit Agreement, as of
the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent provided in
this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent and
approval by Miller if required under the Credit Agreement, from
and after the Effective Date, the Agent shall make all payments
under the Credit Agreement and the Notes in respect of the
interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by,
and construed in accordance with, the laws of the State of
Georgia.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by
telefacsimile shall be effective as delivery of a manually
executed counterpart of this Assignment and Acceptance.
B-2<PAGE>
IN WITNESS WHEREOF, the Assignor and the Assignee have
caused Schedule 1 to this Assignment and Acceptance to be
executed by their officers thereunto duly authorized as of the
date specified thereon.
[NAME OF ASSIGNOR], as Assignor
By:
Title:
Dated: , 19 _
[NAME OF ASSIGNEE], as Assignee
By:
Title:
Lending Office:
Accepted [and Approved] *
this ___ day of ___________, 19 _
NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION
By:
Title:
[Approved this ____ day
of ____________, 19__
MILLER INDUSTRIES, INC.
By: ]*
Title:
* Required if the Assignee is an Eligible Assignee solely by
reason of clause (iii) of the definition of "Eligible Assignee".
B-3<PAGE>
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
Percentage interest of Revolving Credit Commitment assigned: ________%
Assignee's Revolving Credit Commitment: $_______
Aggregate outstanding principal amount of
Revolving Loans assigned: $_______
Principal amount of Revolving Note payable
to Assignee: $_______
Principal amount of Revolving Note payable
to Assignor: $_______
Effective Date (if other than date
of acceptance by Agent): _______, 19__
B-4<PAGE>
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Credit Agreement dated as of
January 30, 1998 (the "Agreement") among MILLER INDUSTRIES, INC.,
a Tennessee corporation ("Miller"), MILLER INDUSTRIES TOWING
EQUIPMENT INC., a Delaware corporation ("Miller Towing," and
together with Miller the "Borrowers"), the Lenders (as defined
in the Agreement), and NationsBank of Tennessee, National
Association, as Agent for the Lenders ("Agent"). Capitalized
terms used but not defined herein shall have the respective
meanings therefor set forth in the Agreement.
Miller hereby nominates, constitutes and appoints each
individual named below as an Authorized Representative under the
Loan Documents, and hereby represents and warrants that (i) set
forth opposite each such individual's name is a true and correct
statement of such individual's office (to which such individual
has been duly elected or appointed), a genuine specimen signature
of such individual and an address for the giving of notice, and
(ii) each such individual has been duly authorized by Miller to
act as Authorized Representative under the Loan Documents:
Name and Address Office Specimen Signature
Miller hereby revokes (effective upon receipt hereof by the
Agent) the prior appointment of ________________ as an Authorized
Representative.
This the ___ day of __________________, 19__.
MILLER INDUSTRIES, INC.
By:
Name:
Title:
C-1
<PAGE>
EXHIBIT D-1
Form of Borrowing Notice
To: NationsBank of Tennessee, National Association,
as Agent
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704)386-9936
Reference is hereby made to the Credit Agreement dated as
of January 30, 1998 (the "Agreement") among MILLER INDUSTRIES,
INC., a Tennessee corporation ("Miller"), MILLER INDUSTRIES
TOWING EQUIPMENT INC., a Delaware corporation ("Miller Towing,"
and together with Miller, the "Borrowers"), the Lenders (as
defined in the Agreement), and NationsBank of Tennessee, National
Association, as Agent for the Lenders ("Agent"). Capitalized
terms used but not defined herein shall have the respective
meanings therefor set forth in the Agreement.
The Borrowers through their Authorized Representative hereby
gives notice to the Agent that Loans of the type and amount set
forth below be made on the date indicated:
Type of Loan Interest Aggregate
(check one) Period<F1> Amount<F2> Date of Loan<F3>
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
__________________________________________________
[FN]
<F1> For any Eurodollar Rate Loan, one, two, three or six
months.
<F2> Must be $2,000,000 or if greater an integral multiple
of $1,000,000, unless a Base Rate Refunding Loan.
<F3> At least three (3) Business Days later if a Eurodollar
Rate Loan.
</FN>
The Borrowers hereby request that the proceeds of Loans
described in this Borrowing Notice be made available to the
Borrowers as follows: [insert transmittal instructions].
------------------------------------
The undersigned hereby certifies that:
D-1-1<PAGE>
1. No Default or Event of Default exists either now
or after giving effect to the borrowing described herein; and
2. All the representations and warranties set forth
in Article VII of the Agreement and in the Loan Documents (other
than those expressly stated to refer to a particular date) are
true and correct in all material respects as of the date hereof
except that the reference to the financial statements in Section
7.6(a) of the Agreement are to those financial statements most
recently delivered to you pursuant to Section 8.1 of the
Agreement (it being understood that any financial statements
delivered pursuant to Section 8.1(b) or (c) have not been
certified by independent public accountants) and attached hereto
are any changes to the Schedules referred to in connection with
such representations and warranties.
3. All conditions contained in the Agreement to the
making of any Loan requested hereby have been met or satisfied in
full .
MILLER INDUSTRIES, INC.
MILLER INDUSTRIES TOWING EQUIPMENT INC.
BY:____________________________________
Authorized Representative
DATE: _________________________________
D-1-2<PAGE>
EXHIBIT D-2
Form of Borrowing Notice -- Swing Line Loans
To: NationsBank of Tennessee, National Association,
as Agent
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704)386-9936
Reference is hereby made to the Credit Agreement
dated as of January 30, 1998 (the "Agreement") among MILLER
INDUSTRIES, INC., a Tennessee corporation, ("Miller"), MILLER
INDUSTRIES TOWING EQUIPMENT INC., a Delaware corporation ("Miller
Towing," and together with Miller, the "Borrowers"), the Lenders
(as defined in the Agreement), and NationsBank of Tennessee,
National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not defined herein shall have the
respective meanings therefor set forth in the Agreement.
The Borrowers through their Authorized Representative
hereby gives notice to NationsBank as Swing Line Lender that a
Swing Line Loan of the amount set forth below be made on the date
indicated:
Amount (1) Date of Loan
______________ ____________, ____
(1) Must be $100,000 or if greater an integral multiple of
$100,000, unless a Base Rate Refunding Loan.
The Borrowers hereby request that the proceeds of Swing
Line Loans described in this Borrowing Notice be made available
to the Borrowers as follows: [insert transmittal instructions] .
-----------------------------------
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now
or after giving effect to the borrowing described herein; and
2. All the representations and warranties set forth
in Article VII of the Agreement and in the Loan Documents (other
than those expressly stated to refer to a particular date) are
true and correct in all material respects as of the date hereof
except that the reference to the financial statements in Section
7.6(a) of the Agreement are to those financial statements most
recently delivered to you pursuant to Section 8.1 of the
Agreement (it being understood that any financial statements
delivered pursuant to Section 8.1(b) or (c) have not been
certified by independent public accountants) and attached hereto
are any changes to the Schedules referred to in connection with
such representations and warranties.
D-2-1<PAGE>
3. All conditions contained in the Agreement to the
making of any Loan requested hereby have been met or satisfied in
full .
MILLER INDUSTRIES, INC.
MILLER INDUSTRIES TOWING EQUIPMENT INC.
BY:____________________________________
Authorized Representative
DATE:__________________________________
D-2-2<PAGE>
EXHIBIT E
Form of Collateral Assignment of Interests
[See Attached]
E-1<PAGE>
FORM OF
COLLATERAL ASSIGNMENT OF INTERESTS
THIS COLLATERAL ASSIGNMENT OF INTERESTS (the "Agreement") is
made and entered into this ___ day of _________, 199__ by and
between _____________ ___________________________________________
(the "Pledgors", and each individually a "Pledgor") and
NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the
United States, as Agent (the "Agent") for each of the financial
institutions (the "Lenders" and collectively with the Agent, the
"Secured Parties") now or hereafter party to the Credit Agreement
(as defined below). All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned
thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to
Miller Industries, Inc. ("Miller") and to Miller Industries
Towing Equipment Inc., a Delaware company ("Miller Towing," and
together with Miller, the "Borrower"), certain credit facilities,
including a revolving credit facility with a letter of credit
sublimit and a swing line sublimit, pursuant to the Credit
Agreement dated as of January 30, 1998 among the Borrower, the
Agent and the Lenders (as from time to time amended, revised,
modified, supplemented, or amended and restated the "Credit
Agreement"); and
WHEREAS, all or some of the Pledgors have entered into the
Credit Agreement or that certain Guaranty Agreement of even date
therewith in favor of the Agent for the benefit of the Lenders
(the "Guaranty"); and
WHEREAS, as collateral security for the payment and
performance of the Borrower's Obligations and the Guarantors'
Obligations (as defined in the Guaranty), each Pledgor is willing
to collaterally assign and pledge to, and grant to the Agent for
the benefit of the Lenders a security interest in, all general
and limited partnership interests, as applicable, all membership
interests, or other equivalent indicia of equity ownership,
whether now in existence or hereafter issued, of each partnership
or limited liability company or similar entity which is now or at
any time hereafter becomes a Subsidiary, all of which are
required to be subject to a Pledge Agreement pursuant to the
Credit Agreement (the "Pledged Interests"), including without
limitation the Pledged Interests more particularly described on
Schedule 1 attached hereto (such Subsidiaries, together with all
other Subsidiaries whose equity interests may be required to be
subject to a Pledge Agreement from time to time, are hereinafter
referred to collectively as the "Pledged Subsidiaries"); and
WHEREAS, the Lenders are unwilling to enter into the Loan
Documents unless each Pledgor enters into this Agreement;
E-2<PAGE>
NOW, THEREFORE, in order to induce the Secured Parties to
enter into the Loan Documents, to extend credit to the Borrower
and to make loans and advances and issue letters of credit and in
consideration of the premises and the mutual covenants contained
herein, the parties hereto agree as follows:
1. COLLATERAL ASSIGNMENT AND PLEDGE OF INTERESTS.
(a) As collateral security for the payment and performance
by the Borrower of its now or hereafter existing Obligations and
by the Pledgors of their now or hereafter existing liabilities
and obligations under the Guaranty (collectively with the
Obligations, the "Secured Obligations"), each Pledgor hereby
pledges and collaterally assigns to the Agent for the benefit of
the Lenders, and grants to the Agent for the benefit of the
Lenders a first priority lien and security interest in, the
Pledged Interests and all of the following:
(i) all cash, securities, distributions, rights
(including without limitation any and all rights to
subscribe to additional ownership interests) and other
property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of
the Pledged Interests, other than cash dividends permitted
to be retained by the Pledgors under Section 9 hereof;
(ii) all other property hereafter delivered to the
Agent in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or
evidencing such property and all cash, securities, interest,
dividends, rights and other property at any time and from
time to time declared or distributed in respect of or in
exchange for any or all of the Pledged Interests; and
(iii) all proceeds of any of the foregoing.
All such Pledged Interests, certificates, instruments, cash,
securities, interest, distributions, rights and other property
referred to in this Section 1, other than cash distributions
issued in respect of such Pledged Interests that are permitted to
be retained by the Pledgors under Section 9 hereof, are herein
collectively referred to as the "Collateral." All of the Pledged
Interests described on Schedule I in effect from time to time is
currently owned by the respective Pledgors listed on Schedule I
hereto. None of the Pledged Interests are represented by any
certificate or other tangible evidence of ownership.
(b) Each Pledgor agrees to deliver all the Collateral to
the Agent at such location or locations as the Agent shall from
time to time designate by written notice pursuant to Section 25
hereof for its custody at all times until termination of this
Agreement, together with such instruments of assignment and
transfer as requested by the Agent.
(c) Each Pledgor agrees to deliver all documents,
agreements, financing statements, amendments thereto, assignments
or other writings as the Agent may reasonably request to carry
out the terms of this Agreement or to protect or enforce the lien
and security interest in the Collateral hereunder granted thereby
to the Agent for the benefit of the Lenders and further agrees to
2
E-3<PAGE>
do and cause to be done all things determined by the Agent to be
reasonably necessary to perfect and keep in full force the Lien
in the Collateral hereunder granted thereby in favor of the Agent
for the benefit of the Lenders, including, but not limited to,
the prompt payment of all reasonable out-of-pocket fees and
expenses incurred in connection with any filings made to perfect
or continue the lien and security interest in the Collateral
hereunder granted thereby in favor of the Agent for the benefit
of the Lenders. Each Pledgor agrees to make appropriate entries
upon its books and records (including without limitation its
ownership record and transfer books) disclosing the Lien in the
Collateral hereunder granted thereby to the Agent for the benefit
of the Lenders hereunder.
(d) All advances, charges, reasonable costs and reasonable
expenses, including reasonable attorneys' fees, incurred or paid
by any Secured Party in exercising any right, power or remedy
conferred by this Agreement, or in the enforcement thereof, shall
become a part of the Secured Obligations and shall be paid to the
Agent for the benefit of the Lenders by the Pledgors immediately
upon demand therefor, with interest thereon until paid in full at
the Default Rate for Base Rate Loans.
2. STATUS OF PLEDGED INTERESTS. Each Pledgor hereby
represents and warrants to the Agent for the benefit of the
Lenders that (i) all of the Pledged Interests are validly issued
and outstanding, fully paid and nonassessable and constitute all
the authorized, issued and outstanding partnership, membership or
other equity interests of each of the Pledged Entities of such
Pledgor, (ii) such Pledgor is the registered and record and
beneficial owner of such Pledged Interests, free and clear of all
Liens, charges, equities, encumbrances and restrictions on pledge
or transfer (other than the Liens created under the Loan
Documents and restrictions imposed by applicable federal or state
securities law), (iii) such Pledgor has full power, legal right
and lawful authority to execute this Agreement and to pledge,
assign and transfer such Pledged Interests in the manner and form
hereof, and (iv) the pledge, assignment and delivery of such
Pledged Interests by such Pledgor to the Agent for the benefit of
the Lenders pursuant to this Agreement creates a valid and
perfected first priority security interest in such Pledged
Interests in favor of the Agent for the benefit of the Lenders,
securing the payment of the Secured Obligations. Except as
permitted under Sections 9.5 or 9.7 of the Credit Agreement, none
of the Pledged Interests (nor any interest therein or thereto)
shall be sold, transferred or assigned, nor any Lien created
therein, without the Agent's prior written consent. Each Pledgor
covenants with the Agent for the benefit of the Lenders that it
shall at all times cause its Pledged Interests to be and remain
uncertificated and the Lien created hereunder to be registered on
the books and records of each Pledged Subsidiary maintained to
record the ownership and transfer of ownership of Pledged
Interests, and in the event, notwithstanding the foregoing, the
Pledged Interests or any of them are certificated, to deliver
such certificates promptly to the Agent together with such
instruments of assignment and transfer duly executed in blank by
such Pledgor as the Agent shall request. Each Pledgor further
covenants with the Agent for the benefit of the Lenders that it
shall not cause, suffer or permit any of the Pledged Subsidiaries
to issue and equity securities, or securities convertible into,
or exercisable or exchangeable for, equity securities, at any
time during the term of this Agreement other than to the Pledgors
and subject to this Agreement pursuant to Section 23 hereof.
3
E-4<PAGE>
3. PRESERVATION AND PROTECTION OF COLLATERAL.
(a) The Agent shall be under no duty or liability with
respect to the collection, protection or preservation of the
Collateral, or otherwise, other than the obligation to deal with
the Collateral while in its possession in the same manner as the
Agent deals with similar securities or property held as
collateral for loans.
(b) Each Pledgor agrees to pay when due all taxes, charges,
Liens and assessments against the Collateral in which it has an
interest, unless being contested in good faith by appropriate
proceedings diligently conducted and against which adequate
reserves have been established in accordance with GAAP and
evidenced to the satisfaction of the Agent and provided further
that all enforcement proceedings in the nature of levy or
foreclosure are effectively stayed. Upon the failure of the
Pledgors to so pay or contest such taxes, charges, Liens or
assessments, the Agent at its option may pay or contest any of
them (the Agent having the sole right to determine the legality
or validity and the amount necessary to discharge such taxes,
charges, Liens or assessments).
4. DEFAULT. Upon the occurrence and during the
continuance of any Event of Default, the Agent is given full
power and authority, then or at any time thereafter, to sell,
assign and deliver or collect the whole or any part of the
Collateral, or any substitute therefor or any addition thereto,
in one or more sales, with or without any previous demands or
demand of performance or, to the extent permitted by law, notice
or advertisement, in such order as the Agent may elect; and any
such sale may be made either at public or private sale at the
Agent's place of business or elsewhere, either for cash or upon
credit or for future delivery, at such price as the Agent may
reasonably deem fair; and the Agent may be the purchaser of any
or all Collateral so sold and hold the same thereafter in its own
right free from any claim of the Pledgors or right of redemption.
Demands of performance, advertisements and presence of property
and sale and notice of sale are hereby waived to the extent per-
missible by law. Any sale hereunder may be conducted by an
auctioneer or any officer or agent of the Agent. Each Pledgor
recognizes that the Agent may be unable to effect a public sale
of the Collateral by reason of certain prohibitions contained in
the Securities Act of 1933, as amended (the "Securities Act"),
and applicable state law, and may be otherwise delayed or
adversely affected in effecting any sale by reason of present or
future restrictions thereon imposed by governmental authorities,
and that as a consequence of such prohibitions and restrictions
the Agent may be compelled (i) to resort to one or more private
sales to a restricted group of purchasers who will be obliged to
agree, among other things, to acquire the security for their own
account, for investment and not with a view to the distribution
or resale thereof, or (ii) to seek regulatory approval of any
proposed sale or sales, or (iii) to limit the amount of
Collateral sold to any Person or group. Each Pledgor agrees and
acknowledges that private sales so made may be at prices and upon
terms less favorable to the Pledgors than if such Collateral was
sold either at public sales or at private sales not subject to
other regulatory restrictions, and that the Agent has no
obligation to delay the sale of any of the Collateral for the
period of time necessary to permit the issuer of such Collateral
to register or otherwise qualify the Collateral, even if such
4
E-5<PAGE>
issuer would agree to register or otherwise qualify such
Collateral for public sale under the Securities Act or applicable
state law. Such Pledgor further agrees that private sales made
under the foregoing circumstances will not, for that reason, be
deemed to have been made in a manner which is not commercially
reasonable. Each Pledgor hereby acknowledges that a ready market
may not exist for the Pledged Interests since they are not traded
on a national securities exchange or quoted on an automated
quotation system and agrees and acknowledges that in such event
the Pledged Interests may be sold for an amount less than a pro
rata share of the fair market value of the issuer's assets minus
its liabilities. In addition to the foregoing, the Secured
Parties may exercise such other rights and remedies as may be
available under the Loan Documents, at law or in equity.
5. PROCEEDS OF SALE. The proceeds of the sale of any of
the Collateral hereunder and all sums received or collected from
or on account of such Collateral hereunder shall be applied to
the payment of expenses incurred or paid by the Agent in
connection with any sale, transfer or delivery of the Collateral,
to the payment of any other costs, charges, reasonable attorneys'
fees or expenses mentioned herein, and to the payment of the
Secured Obligations or any part thereof, all in such order and
manner as is provided in Section 10.5 of the Credit Agreement and
otherwise as the Agent may determine and as permitted by
applicable law. The Agent shall, upon satisfaction in full of
all such Secured Obligations, pay any balance to the Pledgors or
otherwise as may be required by applicable law.
6. PRESENTMENTS, ETC. The Agent shall not be under any
duty or obligation whatsoever to make or give any presentments,
demands for performances, notices of nonperformance, protests,
notice of protest or notice of dishonor in connection with any
obligations or evidences of indebtedness held thereby as
collateral, or in connection with any obligations or evidences of
indebtedness which constitute in whole or in part the Secured
Obligations secured hereunder.
7. ATTORNEY-IN-FACT. Each Pledgor hereby appoints the
Agent as such Pledgor's attorney-in-fact for the purposes of
carrying out the provisions of this Agreement and taking any
action and executing any instrument which the Agent may deem
necessary or advisable to accomplish the purposes hereof, which
appointment is coupled with an interest and is irrevocable;
provided, that the Agent shall have and may exercise rights under
this power of attorney only upon the occurrence and during the
continuance of an Event of Default. Without limiting the
generality of the foregoing, upon the occurrence and during the
continuance of an Event of Default, the Agent shall have the
right and power to receive, endorse and collect all checks and
other orders for the payment of money made payable to such
Pledgor representing any interest payment, principal payment or
other distribution payable or distributable in respect of, or
otherwise constituting, the Collateral or any part thereof and to
give full discharge for the same.
8. WAIVER BY PLEDGOR. Each Pledgor waives (to the extent
permitted by applicable law) any right to require any Secured
Party or any other obligee of the Secured Obligations to (a)
proceed against any other Pledgor or any Person, including
without limitation any Guarantor, (b) proceed against or exhaust
any Collateral or other collateral for the Secured Obligations,
5
E-6<PAGE>
or (c) pursue any other remedy in its power; and waives (to the
extent permitted by applicable law) any defense arising by reason
of any disability or other defense of any other Pledgor or any
other Person, including without limitation any Guarantor, or by
reason of the cessation from any cause whatsoever of the
liability of any other Pledgor or any other Person, including
without limitation any Guarantor. The Agent may at any time
deliver (without representation, recourse or warranty) the
Collateral or any part thereof to any Pledgor who has an interest
therein and the receipt thereof by any Pledgor shall be a
complete and full acquittance for the Collateral so delivered,
and the Secured Parties shall thereafter be discharged from any
liability or responsibility therefor.
9. DISTRIBUTIONS AND VOTING RIGHTS.
(a) All distributions with respect to the Pledged Interests
shall be subject to the pledge hereunder, except for cash
distributions permitted to be made under the Credit Agreement,
which may be retained by the Pledgors so long as no Event of
Default shall have occurred and be continuing, and shall be
retained by the Pledgors free from any Lien hereunder. Upon the
occurrence and during the continuance of any Event of Default,
all such cash and other distributions shall be promptly delivered
to the Agent if requested by the Agent (together, if the Agent
shall request, with stock powers or instruments of assignment
duly executed in blank affixed to any certificate representing
any ownership interest or other security or negotiable document
or instrument so distributed) to be held, released or disposed of
by it hereunder or, at the option of the Agent, to be applied to
the Secured Obligations hereby secured as they become due.
(b) So long as no Event of Default shall have occurred and
be continuing, the registration of the Collateral in the name of
any Pledgor shall not be changed and the Pledgors shall be
entitled to exercise all voting and other rights and powers
pertaining to the Collateral for all purposes not inconsistent
with the terms hereof.
(c) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Agent, all rights of the
Pledgors to receive and retain distributions upon the Collateral
shall cease and shall thereupon be vested in the Agent for the
benefit of the Lenders.
(d) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Agent, all rights of the
Pledgors to exercise the voting or consensual rights and powers
which it is authorized to exercise with respect to the
Collateral pursuant to subsection (b) above shall cease and the
Agent may thereupon (but shall not be obligated to), at its
request, cause such Collateral to be registered in the name of
the Agent or its nominee or agent for the benefit of the Lenders
and exercise such voting or consensual rights and powers as
appertain to ownership of such Collateral, and to that end each
Pledgor hereby appoints the Agent as its proxy, with full power
of substitution, to vote and exercise all other rights as a
partner (either general or limited, as applicable), member or
other holder with respect to the Pledged Interests hereunder upon
the occurrence and during the continuance of any Event of
Default, which proxy is coupled with an interest and is
irrevocable prior to termination of this Agreement as set forth
6
E-7<PAGE>
in Section 22 hereof, and each Pledgor hereby agrees to provide
such further proxies as the Agent may request; provided, however,
that the Agent in its discretion may from time to time refrain
from exercising, and shall not be obligated to exercise, any such
voting or consensual rights or such proxy.
10. POWER OF SALE. Until all of the Secured Obligations
shall have irrevocably been paid in full, the power of sale and
other rights, powers and remedies granted to the Agent for the
benefit of the Lenders hereunder shall continue to exist and may
be exercised by the Agent at any time and from time to time
irrespective of the fact that any Secured Obligations or any part
thereof may have become barred by any statute of limitations or
that the liability of any Pledgor may have ceased.
11. OTHER RIGHTS. The rights, powers and remedies given to
the Agent for the benefit of the Lenders by this Agreement shall
be in addition to all rights, powers and remedies given to any
Lender by virtue of any statute or rule of law. Any forbearance
or failure or delay by the Agent in exercising any right, power
or remedy hereunder shall not be deemed to be a waiver of such
right, power or remedy, and any single or partial exercise of any
right, power or remedy hereunder shall not preclude the further
exercise thereof. Every right, power and remedy of the
Lenders shall continue in full force and effect until such right,
power or remedy is specifically waived by the Required Lenders by
an instrument in writing.
12. ANTI-MARSHALLING PROVISIONS. The right is hereby given
by each Pledgor to the Agent, for the benefit of the Secured
Parties, to make releases (whether in whole or in part) of all or
any part of the Collateral agreeable to the Agent without notice
to, or the consent, approval or agreement of other parties and
interests, including junior lienors, which releases shall not
impair in any manner the validity of or priority of the Liens and
security interests in the remaining Collateral conferred under
such documents, nor release such Pledgor from personal liability
for the Secured Obligations hereby secured. Notwithstanding the
existence of any other security interest in the Collateral held
by the Agent, for the benefit of the Secured Parties, the Agent
shall have the right to determine the order in which any or all
of the Collateral shall be subjected to the remedies provided in
this Agreement. The proceeds realized upon the exercise of the
remedies provided herein shall be applied by the Agent, for the
benefit of the Secured Parties, in the manner provided in Section
10.5 of the Credit Agreement. Each Pledgor hereby waives any and
all right to require the marshalling of assets in connection with
the exercise of any of the remedies permitted by applicable law
or provided herein.
13. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the
Secured Parties, and all obligations of the Pledgors hereunder,
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document or any other
agreement or instrument relating to any of the Secured
Obligations;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Secured
Obligations, or any other amendment or waiver of or any
7
E-8<PAGE>
consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument
relating to any of the Secured Obligations;
(c) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for all or any of
the Secured Obligations; or
(d) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, the
Pledgors in respect of the Secured Obligations or of this
Agreement.
14. DEFINITIONS. All terms used herein unless otherwise
defined in the Credit Agreement shall be defined in accordance
with the appropriate definitions appearing in the Uniform
Commercial Code as in effect in Georgia, and such definitions are
hereby incorporated herein by reference and made a part hereof.
15. ENTIRE AGREEMENT; WAIVERS. This Agreement, together
with the Credit Agreement, the Guaranty and other Loan Documents,
constitutes and expresses the entire understanding between the
parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings, inducements,
commitments or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and
supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof. Neither this
Agreement nor any portion or provision hereof may be changed,
altered, modified, supplemented, discharged, canceled,
terminated, or amended orally or in any manner other than by an
agreement, in writing signed by the parties hereto. No waiver of
any provision of this Pledge Agreement nor consent to any
departure by Pledgor herefrom shall in any event be effective
unless the same shall be in writing and signed by the Agent, and
then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is
given.
16. FURTHER ASSURANCES. Each Pledgor agrees at its own
expense to do such further acts and things, and to execute and
deliver such additional conveyances, assignments, financing
statements, agreements and instruments, as the Agent may at any
time reasonably request in connection with the administration or
enforcement of this Agreement or related to the Collateral or any
part thereof or in order better to assure and confirm unto the
Agent its rights, powers and remedies for the benefit of the
Lenders hereunder. Each Pledgor hereby consents and agrees that
the issuers of or obligors in respect of the Collateral shall be
entitled to accept the provisions hereof as conclusive evidence
of the right of the Agent, on behalf of the Lenders, to exercise
its rights hereunder with respect to the Collateral,
notwithstanding any other notice or direction to the contrary
heretofore or hereafter given by the Pledgors or any other Person
to any of such issuers or obligors. The Agent may from time to
time, at its option, perform any act which any Pledgor agrees
hereunder to perform and which such Pledgor shall fail to perform
after being requested in writing to so perform and the Agent may
from time to time take any other action which the Agent
reasonably deems necessary for the maintenance, preservation or
protection of any of the Collateral or of the security interest
therein.
8
E-9<PAGE>
17. BINDING AGREEMENT; ASSIGNMENT. This Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and
inure to the benefit of the parties hereto, and to their
respective successors and assigns, except that no Pledgor shall
assign this Agreement or any interest herein or in the
Collateral, or any part thereof, or otherwise pledge, encumber or
grant any option with respect to the Collateral, or any part
thereof, or any cash or property held by the Agent as Collateral
under this Agreement. All references herein to the Agent shall
include any successor thereof, each Lender and any other obligees
from time to time of the Secured Obligations.
18. SWAP AGREEMENTS. All obligations of the Borrower under
Swap Agreements shall be deemed to be Secured Obligations secured
hereby, and each Lender or affiliate of a Lender party to any
such Swap Agreement shall be deemed to be a Secured Party
hereunder.
19. SEVERABILITY. In case any Lien, security interest or
other right of any Secured Party or any provision hereof shall be
held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien,
security interest or other right granted hereby or provision
hereof.
20. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and all the counterparts taken together
shall be deemed to constitute one and the same instrument.
21. EXPENSES; INDEMNIFICATION. Upon demand, each Pledgor
will pay to the Agent the amount of any and all expenses,
including the reasonable fees and disbursements of its counsel
and of any experts, which the Agent may incur in connection with
the administration of this Agreement or any instrument relating
hereto, the removal, custody, preservation, use or operation of,
or the sale of, collection from, or other realization upon, any
of the Collateral, the exercise or enforcement of any of the
rights of the Agent and the Secured Parties with respect to
Collateral, the failure by such Pledgor to perform or observe any
of the provisions hereof or the advancement of any funds in
connection with actions taken pursuant to this Agreement. Without
limitation of Section 12.9 of the Credit Agreement or any other
indemnification provision in any Loan Document, each Pledgor
hereby jointly and severally covenants and agrees to pay,
indemnify, and hold the Secured Parties harmless from and against
any and all out-of-pocket liabilities, costs, expenses or
disbursements of any kind or nature whatsoever arising in
connection with any claim or litigation by any Person resulting
from the execution, delivery, enforcement, performance and
administration of this Agreement or the Loan Documents, or the
transactions contemplated hereby or thereby, or in any respect
relating to the Collateral or any transaction pursuant to which
the Pledgor has incurred any Obligation (all the foregoing,
collectively, the "indemnified liabilities"); provided, however,
that the Pledgor shall have no obligation hereunder with respect
to indemnified liabilities resulting from the willful misconduct
or gross negligence of the Agent or any Lender. The agreements
in this subsection shall survive repayment of all Secured
Obligations and termination or expiration of this Agreement.
22. TERMINATION. This Agreement and all obligations of the
Pledgors hereunder shall terminate on the irrevocable payment in
full of the Secured Obligations, at which time the Liens and
9
E-10<PAGE>
rights granted to the Agent for the benefit of the Lenders
hereunder shall automatically terminate and not longer be in
effect, and the Collateral shall automatically be released from
the Liens created hereby. Upon such termination of this
Agreement, the Agent shall, at the sole expense of the Pledgors,
deliver to the Pledgors any property received as a distribution
or otherwise in respect of the Pledged Interests then in its
custody, together with any cash then constituting the Collateral,
not then sold or otherwise disposed of in accordance with the
provisions hereof and take such further actions as may be
necessary to effect the same and as shall be reasonably
acceptable to the Agent.
23. ADDITIONAL INTERESTS. If any Pledgor shall acquire or
hold (a) any additional partnership, membership or other equity
interests of any Pledged Subsidiary or (b) any partnership,
membership or other equity interests of any Subsidiary not listed
on Schedule I hereto which are required to be subject to a Pledge
Agreement pursuant to the terms of Article IV or any other
provision of the Credit Agreement (any such interests described
in clauses (a) or (b) above being referred to herein as the
"Additional Interests"), such Pledgor shall deliver to the Agent
for the benefit of the Lenders (i) a revised Schedule I hereto
reflecting the ownership and pledge of such Additional Interests
and (ii) a Collateral Assignment Supplement in the form of
Exhibit A hereto with respect to such Additional Interests duly
completed and signed by such Pledgor. Each Pledgor shall comply
with the requirements of this Section 23 concurrently with the
acquisition of any such Additional Interests in the case of
interests described in clause (a) above, and within the time
period specified in Article IV or elsewhere in the Credit
Agreement with respect to interests described in clause (b)
above.
24. REMEDIES CUMULATIVE. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies
of the Agent provided by law or under the Credit Agreement, the
other Loan Documents, or other applicable agreements or
instruments. The making of the Loans to the Borrower pursuant to
the Credit Agreement, and the issuing of Letters of Credit for
the benefit of the Borrower, shall be conclusively presumed to
have been made or extended, respectively, in reliance upon the
Pledgor's grant of the Lien on the Collateral hereunder.
25. NOTICES. Any notice required or permitted hereunder
shall be given (a) with respect to any Pledgor, care of the
Borrower at its address indicated in Section 12.2 of the Credit
Agreement and (b) with respect to the Agent or a Lender, at the
Agent's address indicated in Section 12.2 of the Credit
Agreement. All such notices shall be given and shall be
effective as provided in Section 12.2 of the Credit Agreement.
26. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
10
E-11
<PAGE>
(b) EACH PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF HAMILTON,
STATE OF TENNESSEE, UNITED STATES OF AMERICA OR THE COUNTY
OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH PLEDGOR EXPRESSLY WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR
TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY,
ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND
EACH PLEDGOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH PLEDGOR AGREES THAT SERVICE OF PROCESS MAY BE
MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE
PREPAID) TO THE ADDRESS OF THE BORROWER PROVIDED IN SECTION
12.2 OF THE CREDIT AGREEMENT, OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) or (b) HEREOF
SHALL PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE EACH PLEDGOR OR ANY OF SUCH PLEDGOR'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION
THEREWITH, EACH PLEDGOR AND THE AGENT ON BEHALF OF THE
LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION OR
PROCEEDING.
[Signature pages follow.]
11
E-12
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this
Collateral Assignment of Interests on the day and year first
written above.
PLEDGORS:
[LIST PLEDGORS]
By:____________________________________
Name:__________________________________
Title:___________________________________
SIGNATURE PAGE 1 OF 2
E-13
<PAGE>
AGENT:
NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION, as Agent for the Lenders
By:____________________________________
Name:__________________________________
Title:___________________________________
SIGNATURE PAGE 2 OF 2
E-14
<PAGE>
SCHEDULE I
Class or Type Pledged Pledged
Name of of Pledged Interests Interests
Subsidiary Interests Outstanding Pledged
- ---------- ------------- ----------- ---------
E-15
<PAGE>
EXHIBIT A
COLLATERAL ASSIGNMENT SUPPLEMENT
THIS COLLATERAL ASSIGNMENT SUPPLEMENT (this " Supplement"), dated
as of ________, 19__ is made by and between __________________________
__________________ (the "Pledgor"), and NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, a national banking association organized and existing under
the laws of the United States, as Agent (the "Agent") for each of the
financial institutions (the "Lenders") now or hereafter party to the
Credit Agreement dated as of January 30, 1998 among such Lenders, the
Agent, Miller Industries, Inc. and Miller Industries Towing Equipment
Inc. All capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned thereto in the Collateral Assignment
(as defined below).
WHEREAS, the Pledgor is a party to that certain Collateral
Assignment of Interests dated as of _______________, 19__ by the Pledgor
in favor of the Agent for the benefit of the Lenders (the "Collateral
Assignment"); and
WHEREAS, the Pledgor is required under the terms of the Credit
Agreement and the Collateral Assignment to cause certain partnership,
membership or equity interests owned by it and listed on Annex A to this
Supplement (the "Additional Interests") to become subject to the
Collateral Assignment; and
WHEREAS, a material part of the consideration given in connection
with and as an inducement to the execution and delivery of the Credit
Agreement by the Agent and the Lenders was the obligation of the Pledgor
to pledge to the Agent for the benefit of the Lenders the Additional
Interests, whether then owned and not required to be subject to a pledge
or subsequently acquired or created; and
WHEREAS, the Agent and the Lenders have required the Pledgor to
pledge to the Agent for the benefit of the Lenders all of the Additional
Interests in accordance with the terms of the Credit Agreement and the
Collateral Assignment;
NOW, THEREFORE, the Pledgor hereby agrees as follows with the Agent,
for the benefit of the Lenders:
1. The Pledgor hereby reaffirms and acknowledges the pledge and
collateral assignment to, and the grant of security interest in, the
Collateral contained in the Collateral Assignment and pledges and
collaterally assigns to the Agent for the benefit of the Lenders, and
grants to the Agent for the benefit of the Lenders a first priority lien
and security interest in, the Additional Interests and all of the
following:
E-16<PAGE>
(a) all cash, securities, distributions, rights, and other
property at any time and from time to time declared or distributed
in respect of or in exchange for any or all of the Additional
Interests, other than cash distributions permitted to be retained by
the Pledgor under Section 9 of the Collateral Assignment;
(b) all other property hereafter delivered to the Agent in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
property and all cash, securities, interest, distributions, rights,
and other property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of the
Additional Interests; and
(c) all proceeds of any of the foregoing.
The Pledgor hereby acknowledges, agrees and confirms that, by its
execution of this Supplement, the Additional Interests constitute
"Pledged Interests" under and are subject to the Collateral Assignment.
Each of the representations and warranties with respect to Pledged
Interests contained in the Collateral Assignment is hereby made by the
Pledgor with respect to the Additional Interests. A revised Schedule I
to the Collateral Assignment reflecting the Additional Interests and all
other Pledged Interests have been delivered herewith to the Agent.
IN WITNESS WHEREOF, the Pledgor has caused this Supplement to be
duly executed by its authorized officer as of the day and year first
above written.
[NAME OF PLEDGOR]
By:
Name:
Title:
Acknowledged and accepted:
NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION,
as Agent for the Lenders
By:
Name:
Title:
E-17
<PAGE>
ANNEX A
SCHEDULE I
Class or Type Pledged Pledged
Name of of Pledged Interests Interests
Subsidiary Interests Outstanding Pledged
- ---------- ------------- ----------- ---------
E-18
<PAGE>
EXHIBIT F
Form of Guaranty
[See Attached]
F-1
<PAGE>
FORM OF
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement" or this
"Guaranty"), dated as of __________, 199__, is made by EACH OF
THE UNDERSIGNED (each a "Guarantor" and collectively the
"Guarantors") to NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION,
a national banking association organized and existing under the
laws of the United States, as Agent (the "Agent") for each of the
lenders (the "Lenders" and collectively with the Agent the
"Secured Parties") now or hereafter party to the Credit Agreement
(as defined below). All capitalized terms used but not otherwise
defined herein shall have the meaning ascribed to such terms in
the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to
Miller Industries, Inc., a Tennessee corporation ("Miller"), and
Miller Industries Towing Equipment Inc., a Delaware corporation
("Miller Towing," and together with Miller, the "Borrowers"),
certain credit facilities, including a revolving credit facility
with a letter of credit sublimit and a swing line sublimit,
pursuant to the Credit Agreement dated as of January 30, 1998
among the Borrowers, the Agent and the Lenders (as from time to
time amended, revised, modified, supplemented or amended and
restated, the "Credit Agreement"); and
WHEREAS, each Guarantor is, directly or indirectly, a wholly
owned Subsidiary of one of the Borrowers; and
WHEREAS, as a condition to entering into the Credit
Agreement and making and continuing to make any loans or advances
and issuing and continuing to issue letters of credit thereunder,
each Guarantor is required to guarantee to the Secured Parties
payment of the Borrower's Obligations in accordance with the
terms of this Agreement; and
WHEREAS, each Guarantor will materially benefit from the
loans and advances to be made, and the letters of credit to be
issued, under the Credit Agreement, and each Guarantor is willing
to enter into this Guaranty to provide an inducement for the
Secured Parties to continue to make loans and advances, and to
issue letters of credit, under the Credit Agreement; and
WHEREAS, the Secured Parties are unwilling to enter into the
Loan Documents unless the Guarantors enter into this Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to
enter into the Loan Documents and to make loans and advances and
F-2<PAGE>
issue Letters of Credit, and in consideration of the premises and
mutual covenants contained herein, each Guarantor hereby agrees
as follows:
1. GUARANTY. Each Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably
guarantees to the Secured Parties the payment and performance in
full of the Borrower's Liabilities (as defined below). For all
purposes of this Guaranty Agreement, "Borrower's Liabilities"
means: (a) each Borrower's prompt payment in full, when due or
declared due and at all such times, of all Obligations and all
other amounts pursuant to the terms of the Credit Agreement, the
Notes, and all other Loan Documents executed in connection with
the Credit Agreement and all Rate Hedging Obligations heretofore,
now or at any time or times hereafter owing, arising, due or
payable from the Borrowers to the Lenders, including without
limitation principal, interest, premium or fee (including, but
not limited to, loan fees and attorneys' fees and expenses); and
(b) each Borrower's prompt, full and faithful performance,
observance and discharge of each and every agreement,
undertaking, covenant and provision to be performed, observed or
discharged by either Borrower under the Credit Agreement and all
other Loan Documents executed in connection therewith and all
Swap Agreements. The Guarantors' obligations to the Secured
Parties under this Guaranty Agreement are hereinafter
collectively referred to as the "Guarantors' Obligations";
provided, however, that the liability of each Guarantor
individually with respect to the Guarantor's Obligations shall be
limited to an aggregate amount equal to the largest amount that
would not render its obligations hereunder subject to avoidance
under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any applicable state law.
Each Guarantor agrees that it is jointly and severally,
directly and primarily liable for the Borrower's Liabilities
hereunder.
2. PAYMENT. If either Borrower shall default in payment
or performance of any Borrower's Liabilities, whether principal,
interest, premium, fee (including, but not limited to, loan fees
and attorneys' fees and expenses), or otherwise, when and as the
same shall become due, whether according to the terms of the
Credit Agreement, by acceleration, or otherwise, or upon the
occurrence of any Event of Default under the Credit Agreement
that has not been cured or waived, then any or all of the
Guarantors will, upon demand thereof by the Agent or its
successors or assigns AS OF THE DATE OF SUCH DEMAND, fully pay to
the Agent, for the benefit of the Secured Parties, subject to any
restriction set forth in Section 1 hereof, an amount equal to all
Guarantors' Obligations then due and owing.
3. UNCONDITIONAL OBLIGATIONS. This is a guaranty of
payment and not of collection. The Guarantors' Obligations under
this Guaranty Agreement shall be joint and several, absolute and
unconditional irrespective of the validity, legality or
enforceability of the Credit Agreement, the Notes or any other
Loan Document or any other guaranty of the Borrower's
Liabilities, and shall not be affected by any action taken under
the Credit Agreement, the Notes or any other Loan Document, any
other guaranty of the Borrower's Liabilities, or any other
agreement between the Secured Parties and the Borrowers or any
other Person, in the exercise of any right or power therein
2
F-3<PAGE>
conferred, or by any failure or omission to enforce any right
conferred thereby, or by any waiver of any covenant or condition
therein provided, or by any acceleration of the maturity of any
of the Borrower's Liabilities, or by the release or other
disposal of any security for any of the Borrower's Liabilities,
or by the dissolution of either of the Borrowers or the
combination or consolidation of either of the Borrowers into or
with another entity or any transfer or disposition of any assets
of either of the Borrowers or by any extension or renewal of the
Credit Agreement, any of the Notes or any other Loan Document, in
whole or in part, or by any modification, alteration, amendment
or addition of or to the Credit Agreement, any of the Notes or
any other Loan Document, any other guaranty of the Borrower's
Liabilities, or any other agreement between the Secured Parties
and the Borrowers or any other Person, or by any other cir-
cumstance whatsoever (with or without notice to or knowledge of
any Guarantor) which may or might in any manner or to any extent
vary the risks of such Guarantor, or might otherwise constitute a
legal or equitable discharge of a surety or a guarantor; it being
the purpose and intent of the parties hereto that this Guaranty
Agreement and the Guarantors' Obligations hereunder shall be
absolute and unconditional under any and all circumstances and
shall not be discharged except by payment as herein provided.
4. CURRENCY AND FUNDS OF PAYMENT. Each Guarantor hereby
guarantees that the Guarantors' Obligations will be paid in
lawful currency of the United States of America and in
immediately available funds, regardless of any law, regulation or
decree now or hereafter in effect that might in any manner affect
the Borrower's Liabilities, or the rights of the Secured Parties
with respect thereto as against the Borrowers or either of them,
or cause or permit to be invoked any alteration in the time,
amount or manner of payment by the Borrowers of any or all of the
Borrower's Liabilities.
5. SUITS. Each Guarantor from time to time shall pay to
the Agent for the benefit of the Secured Parties, on demand, at
the Agent's place of business set forth in the Credit Agreement
or such other address as the Agent shall give notice of to such
Guarantor, the Guarantors' Obligations as they become or are
declared due, and in the event such payment is not made
forthwith, the Agent or the Lenders or any of them may proceed to
suit against any one or more or all of the Guarantors. At the
Agent's election, one or more and successive or concurrent suits
may be brought hereon by the Agent against any one or more or all
of the Guarantors, whether or not suit has been commenced against
the Borrowers, any other guarantor of the Borrower's Liabilities,
or any other Person and whether or not the Secured Parties have
taken or failed to take any other action to collect all or any
portion of the Borrower's Liabilities or have taken or failed to
take any actions against any collateral securing payment or
performance of all or any portion of the Borrower's Liabilities.
6. SET-OFF AND WAIVER; SUBORDINATION. Each Guarantor
waives any right to assert against the Secured Parties as a
defense, counterclaim, set-off or cross claim, any defense (legal
or equitable) or other claim which such Guarantor may now or at
any time hereafter have against the Borrowers or the Secured
Parties without waiving any additional defenses, set-offs,
counterclaims or other claims otherwise available to such
Guarantor. If at any time hereafter the Secured Party employs
counsel for advice or other representation to enforce the
Guarantors' Obligations, then, in any of the foregoing events,
all of the reasonable attorneys' fees arising from such services
and all other reasonable expenses, costs and charges in any way
or respect arising in connection therewith or relating thereto
shall be paid by such Guarantor to the Agent, for the benefit of
the Secured Parties, on demand.
Until the Borrower's Liabilities are paid in full and the
Agent and the Secured Parties are under no further obligation to
lend or extend funds or credit which would constitute Borrower's
Liabilities, each Guarantor hereby unconditionally subordinates
all present and future debts, liabilities or obligations of the
Borrowers or either of them or any other Guarantor, as the case
may be, to such Guarantor to the Borrower's Liabilities, and all
amounts due under such debts, liabilities, or obligations shall,
3
F-4<PAGE>
upon the occurrence and during the continuance of an Event of
Default, be collected and paid over forthwith to the Agent, for
the benefit of the Secured Parties, on account of the Borrower's
Liabilities and, pending such payment, shall be held by each
Guarantor as agent and bailee of the Agent and the Secured
Parties separate and apart from all other funds, property and
accounts of such Guarantor. Each Guarantor shall execute such
further documents in favor of the Agent, for the benefit of the
Secured Parties to further evidence and support the purpose of
this subordination.
7. WAIVER; SUBROGATION.
(a) Each Guarantor hereby waives notice of the
following events or occurrences: (i) the Agent's
acceptance of this Guaranty Agreement; (ii) the Lenders'
heretofore, now or from time to time hereafter making Loans
and issuing Letters of Credit and otherwise loaning monies
or giving or extending credit to or for the benefit of the
Borrowers or either of them, whether pursuant to the Credit
Agreement or the Notes or any other Loan Document or any
amendments, modifications, or supplements thereto, or
replacements or extensions thereof; (iii) the Secured
Parties or either of the Borrowers heretofore, now or at any
time hereafter, obtaining, amending, substituting for,
releasing, waiving or modifying the Credit Agreement, the
Notes or any other Loan Documents; (iv) presentment, demand,
default, non-payment, partial payment and protest; (v) any
Secured Party heretofore, now or at any time hereafter
granting to the Borrowers or either of them (or any other
party liable to the Lenders on account of the Borrower's
Liabilities) or to any certain Guarantor any indulgence or
extensions of time of payment of the Borrower's Liabilities
or Guarantors' Obligations, respectively; and (vi) any
Secured Party heretofore, now or at any time hereafter
accepting from either Borrower, any other Guarantor, any
other guarantor of the Borrower's Liabilities or any other
Person, any partial payment or payments on account of the
Borrower's Liabilities or any collateral securing the
payment thereof or the Agent settling, subordinating,
compromising, discharging or releasing the same. Each
Guarantor agrees that each Secured Party may heretofore, now
or at any time hereafter do any or all of the foregoing in
such manner, upon such terms and at such times as each
Secured Party, in its sole and absolute discretion, deems
advisable, without in any way or respect impairing,
affecting, reducing or releasing such Guarantor from the
Guarantors' Obligations, and each Guarantor hereby consents
to each and all of the foregoing events or occurrences.
(b) Each Guarantor hereby agrees that payment or
performance by such Guarantor of the Guarantors'
Obligations under this Guaranty Agreement may be enforced by
the Agent on behalf of the Lenders upon demand by the Agent
to such Guarantor without the Agent being required, such
Guarantor expressly waiving any right it may have to require
the Agent, to (i) prosecute collection or seek to enforce or
resort to any remedies against the Borrowers or either of
them or any other Guarantor or any other guarantor of the
Borrower's Liabilities, or (ii) seek to enforce or resort to
4
F-5<PAGE>
any remedies with respect to any security interests, Liens
or encumbrances granted to the Agent by either Borrower, any
other Guarantor or any other Person on account of the
Borrower's Liabilities or any guaranty thereof, IT BEING
EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH
GUARANTOR THAT DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE
MADE BY THE AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE
AGENT, EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT
OCCURS AND IS CONTINUING UNDER THE CREDIT AGREEMENT.
Neither the Agent nor any Lender shall have any obligation
to protect, secure or insure any of the foregoing security
interests, Liens or encumbrances on the properties or
interests in properties subject thereto. The Guarantors'
Obligations shall in no way be impaired, affected, reduced,
or released by reason of any Secured Party's failure or
delay to do or take any of the acts, actions or things
described in this Guaranty including, without limiting the
generality of the foregoing, those acts, actions and things
described in this Section 7.
(c) Each Guarantor further agrees with respect to this
Guaranty that such Guarantor shall have no right of
subrogation, reimbursement or indemnity, nor any right of
recourse to security for the Borrower's Liabilities until
the irrevocable payment in full of the Borrower's
Liabilities.
8. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement
shall be effective as of the date hereof and shall continue in
full force and effect until all Borrower's Liabilities have been
irrevocably paid in full and the Agent and Secured Parties shall
be under no further obligation to extend credit to the Borrowers
or either of them which would constitute Borrower's Liabilities.
This Guaranty Agreement shall be binding upon and inure to the
benefit of each Guarantor, the Agent and the Lenders and their
respective successors and assigns. Notwithstanding the
foregoing, no Guarantor may, without the prior written consent of
the Agent, assign any rights, powers, duties or obligations
hereunder. Any claim or claims that the Secured Parties may at
any time hereafter have against a Guarantor under this Guaranty
Agreement may be asserted by any Secured Party by written notice
directed to such Guarantor.
9. REPRESENTATIONS AND WARRANTIES. Each Guarantor
warrants and represents to the Agent for the benefit of the
Lenders that it is duly authorized to execute, deliver and
perform this Guaranty Agreement, that this Guaranty Agreement is
legal, valid, binding and enforceable against such Guarantor in
accordance with its terms except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and
by general equitable principles; and that such Guarantor's
execution, delivery and performance of this Guaranty Agreement do
not violate or constitute a breach of its certificate of
incorporation or other documents of corporate governance or any
agreement to which such Guarantor is a party, or any applicable
laws, orders, regulations, decrees or awards of any applicable
governmental authority or arbitral body. Each Guarantor is
solvent after giving effect to the transactions contemplated by
this Guaranty and the other Loan Documents to which it is a
party.
10. EXPENSES. Each Guarantor agrees to be liable for the
payment of all reasonable fees and expenses, including attorney's
fees, incurred by the Agent in connection with the enforcement of
this Guaranty Agreement.
11. REINSTATEMENT. Each Guarantor agrees that this
Guaranty Agreement shall continue to be effective or be
reinstated, as the case may be, at any time payment received by
the Agent under the Credit Agreement or this Guaranty Agreement
is rescinded or must be restored for any reason.
5
F-6<PAGE>
12. ATTORNEY-IN-FACT. Each Guarantor hereby appoints the
Agent as such Guarantor's attorney-in-fact for the purposes of
carrying out the provisions of this Agreement and taking any
action and executing any instrument which the Agent may deem
necessary or advisable to accomplish the purposes hereof, which
appointment is coupled with an interest and is irrevocable;
provided, that the Agent shall have and may exercise rights under
this power of attorney only upon the occurrence and during the
continuance of an Event of Default.
13. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the
Secured Parties, and all obligations of each Guarantor hereunder,
shall be absolute and unconditional irrespective of:
1. any lack of validity or enforceability of the
Credit Agreement, any other Loan Document or any other
agreement or instrument relating to any of the Guarantor's
Obligations;
2. any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guarantor's
Obligations, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument
relating to any of the Guarantor's Obligations;
3. any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for all or any of
the Guarantor's Obligations; or
4. any other circumstances which might otherwise
constitute a defense available to, or a discharge of, each
Guarantor in respect of the Guarantor's Obligations or of
this Agreement.
14. RELIANCE. Each Guarantor represents and warrants to
the Agent, for the benefit of the Secured Parties, that: (a)
such Guarantor has adequate means to obtain from Borrowers, on a
continuing basis, information concerning the Borrowers and the
Borrowers' financial condition and affairs and has full and
complete access to Borrowers' books and records; (b) such
Guarantor is not relying on any Secured Party, its or their
employees, agents or other representatives, to provide such
information, now or in the future; (c) such Guarantor is
executing this Guaranty Agreement freely and deliberately, and
understands the obligations and financial risk undertaken by
providing this Guaranty; (d) such Guarantor has relied solely on
the Guarantor's own independent investigation, appraisal and
analysis of the Borrowers and the Borrowers' financial condition
and affairs in deciding to provide this Guaranty and is fully
aware of the same; and (e) such Guarantor has not depended or
relied on any Secured Party, its or their employees, agents or
representatives, for any information whatsoever concerning the
Borrowers or the Borrowers' financial condition and affairs or
other matters material to such Guarantor's decision to provide
this Guaranty or for any counseling, guidance, or special
consideration or any promise therefor with respect to such
6
F-7<PAGE>
decision. Each Guarantor agrees that neither the Agent nor any
Lender has any duty or responsibility whatsoever, now or in the
future, to provide to such Guarantor any information concerning
the Borrowers or the Borrowers' financial condition and affairs,
other than as expressly provided herein, and that, if such
Guarantor receives any such information from the Agent or any
Lender, its or their employees, agents or other representatives,
such Guarantor will independently verify the information and will
not rely on the Agent or any Lender, its or their employees,
agents or other representatives, with respect to such
information.
15. DEFINITIONS. All terms used herein shall be defined in
accordance with the appropriate definitions appearing in the
Uniform Commercial Code as in effect in Georgia, and such
definitions are hereby incorporated herein by reference and made
a part hereof.
16. ENTIRE AGREEMENT. This Guaranty Agreement, together
with the Credit Agreement and other Loan Documents, constitutes
and expresses the entire understanding between the parties hereto
with respect to the subject matter hereof, and supersedes all
prior agreements and understandings, inducements, commitments or
conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any
of the terms hereof. Neither this Guaranty Agreement nor any
portion or provision hereof may be changed, altered, modified,
supplemented, discharged, canceled, terminated, or amended orally
or in any manner other than by an agreement, in writing signed by
the parties hereto.
17. BINDING AGREEMENT; ASSIGNMENT. This Guaranty
Agreement, and the terms, covenants and conditions hereof, shall
be binding upon and inure to the benefit of the parties hereto,
and to their respective successors and assigns, except that no
Guarantor shall be permitted to assign this Agreement or any
interest herein. All references herein to the Agent shall
include any successor thereof, each Lender and any other obligees
from time to time of the Guarantor's Obligations.
18. SWAP AGREEMENTS. All obligations of the Borrowers
under Swap Agreements shall be deemed to be Borrower's
Liabilities secured hereby, and each Lender or affiliate of a
Lender party to any such Swap Agreement shall be deemed to be a
Secured Party hereunder.
19. REPAYMENT OR RECOVERY. If claim is ever made upon the
Agent or the Secured Parties for repayment or recovery of any
amount or amounts received from Persons other than a Guarantor in
payment or on account of any of the Borrower's Liabilities and
the Agent or the Secured Parties repay all or part of said amount
by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of
its property, or (b) any settlement or compromise of any such
claim effected by the Agent or the Secured Parties with any such
claimant (including the original obligor), then and in such event
each Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon it,
notwithstanding any revocation hereof or the cancellation of any
Note or other instrument evidencing any Borrower's Liabilities or
any security therefor, and each Guarantor shall be and remain
liable to the Agent and the Secured Parties for the amount so
repaid or recovered to the same extent as if such amount had
never originally been received by the Agent or the Secured
Parties.
20. SET-OFF. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an
Event of Default, each Guarantor agrees that the Agent for the
benefit of the Secured Parties shall be authorized, to the
fullest extent permitted by applicable law, to set off and apply
all deposits or deposit accounts, of any kind (other than
deposits identified as being held for third parties), now or
7
F-8<PAGE>
hereafter pledged, mortgaged, transferred or assigned to the
Agent or otherwise in the possession or control of the Agent
(other than for safekeeping) for any purpose for the account or
benefit of such Guarantor and including any balance of any
deposit account or of any credit of such Guarantor with the Agent
or the Secured Parties, whether now existing or hereafter
established, with or without prior notice (but with notice with
reasonable promptness after such set-off) to such of the
liabilities of such Guarantor to the Agent and the Secured
Parties under the Credit Agreement and the other Loan Documents
then past due and in such amounts as they may elect, and whether
or not the collateral or the responsibility of other Persons
primarily, secondarily or otherwise liable may be deemed
adequate. For the purposes of this Section 20, all remittances
and property shall be deemed to be in the possession of the Agent
as soon as the same may be put in transit to it by mail or
carrier or by other bailee.
21. EXPENSES; INDEMNIFICATION. Each Guarantor will upon
demand pay to the Agent or any Secured Party, as applicable the
amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts
and agents, which the Agent or such Secured Party may reasonably
incur in connection with enforcement of this Guaranty or the
failure by a Guarantor to perform or observe any of the
provisions hereof. Without limitation of Section 12.9 of the
Credit Agreement or any other indemnification provision in any
Loan Document, each Guarantor hereby covenants and agrees to pay,
indemnify, and hold the Secured Parties harmless from and against
any and all liabilities, costs, expenses or disbursements of any
kind or nature whatsoever arising in connection with any claim or
litigation by any Person resulting from the execution, delivery,
enforcement, performance and administration of this Guaranty
Agreement or the Loan Documents, or the transactions contemplated
hereby or thereby, or in any respect relating to the Collateral
or any transaction pursuant to which such Guarantor has incurred
any Guarantor's Obligations (all the foregoing, collectively, the
"indemnified liabilities"); provided, however, that such
Guarantor shall have no obligation hereunder with respect to
indemnified liabilities resulting from the willful misconduct or
gross negligence of the Agent or any Lender. If and to the
extent that the obligations of the Guarantors under this Section
21 are unenforceable for any reason, each Guarantor hereby agrees
to make the maximum contribution to the payment and satisfaction
of such obligations which is permissible under applicable law.
The agreements in this subsection shall survive repayment of all
Secured Obligations and termination or expiration of this
Guaranty Agreement.
22. REMEDIES CUMULATIVE. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies
of the Agent provided by law or under the Credit Agreement, the
other Loan Documents, or other applicable agreements or
instruments. The making of the Loans to the Borrowers pursuant
to the Credit Agreement and the extension of credit to the
Borrowers pursuant to the Credit Agreement shall be conclusively
presumed to have been made or extended, respectively, in reliance
upon the Guarantor's guaranty of the Borrower's Liabilities
pursuant to the terms hereof.
23. NOTICES. Any notice required or permitted hereunder
shall be given, (a) with respect to each Guarantor, at the
8
F-9<PAGE>
address of the Borrowers indicated in Section 12.2 of the Credit
Agreement and (b) with respect to the Agent or a Lender, at the
Agent's address indicated in Section 12.2 of the Credit
Agreement. All such notices shall be given and shall be
effective as provided in Section 12.2 of the Credit Agreement.
24. GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
(b) EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF HAMILTON,
STATE OF TENNESSEE, UNITED STATES OF AMERICA OR THE COUNTY
OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY HAVE
NOW OR HEREAFTER TO THE LAYING OF THE VENUE OR TO THE
JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
(c) EACH GUARANTOR AGREES THAT SERVICE OF PROCESS MAY
BE MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE
PREPAID) AND IN ACCORDANCE WITH SECTION 12.2 OF THE CREDIT
AGREEMENT, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR
UNDER THE APPLICABLE LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) OR (b) HEREOF
SHALL PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE COURTS OF
ANY JURISDICTION WHERE THE GUARANTOR OR ANY OF THE
GUARANTOR'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH
THE FOREGOING, EACH GUARANTOR HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY AND EACH GUARANTOR HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO
TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
9
F-10<PAGE>
25. SEVERABILITY. In case any Lien, security interest or
other right of any Secured Party or any provision hereof shall be
held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien,
security interest or other right granted hereby or provision
hereof.
26. COUNTERPARTS. This Guaranty Agreement may be executed
in any number of counterparts and all the counterparts taken
together shall be deemed to constitute one and the same
instrument.
[Signature Page Follows.]
10
F-11
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this
Guaranty Agreement on the day and year first written above.
GUARANTORS:
[LIST GUARANTORS]
By:________________________________
Name:______________________________
Title:_____________________________
GUARANTY AGREEMENT
SIGNATURE PAGE 1 OF __
F-12
<PAGE>
AGENT:
NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as Agent for the
Lenders
By:________________________________
Name:______________________________
Title:_____________________________
GUARANTY AGREEMENT
SIGNATURE PAGE 2 OF __
F-13<PAGE>
EXHIBIT G
Form of Interest Rate Selection Notice
To: NationsBank of Tennessee, National Association,
as Agent
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 388-9436
Reference is hereby made to the Credit Agreement
dated as of January 30, 1998 (the "Agreement") among MILLER
INDUSTRIES, INC., a Tennessee corporation ("Miller"), MILLER
INDUSTRIES TOWING EQUIPMENT INC., a Delaware corporation ("Miller
Towing," and together with Miller, the "Borrowers"), the Lenders
(as defined in the Agreement), and NationsBank of Tennessee,
National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not defined herein shall have the
respective meanings therefor set forth in the Agreement.
The Borrowers through their Authorized Representative
hereby gives notice to the Agent of the following selection of a
type of Loan and Interest Period:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
__________________________________________________
(1) For any Eurodollar Rate Loan, one, two, three or six
months.
(2) Must be $2,000,000 or if greater an integral multiple
of $1,000,000, unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar
Rate Loan.
MILLER INDUSTRIES, INC.
MILLER INDUSTRIES TOWING EQUIPMENT INC.
BY:___________________________________
Authorized Representative
DATE:_________________________________
G-1<PAGE>
EXHIBIT H
Form of LC Account Agreement
[See Attached]
H-1<PAGE>
FORM OF
LC ACCOUNT AGREEMENT
THIS LC ACCOUNT AGREEMENT (the "Agreement") is made and
entered into as of this ____ day of __________, 19___ by and
between MILLER INDUSTRIES, INC., a Tennessee corporation
("Miller"), MILLER INDUSTRIES TOWING EQUIPMENT INC., a Delaware
corporation ("Miller Towing," and together with Miller, the
"Pledgors" or the "Borrower"), and NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION, a national banking association organized
and existing under the laws of the United States, as Agent (the
"Agent") for each of the financial institutions (the "Lenders,"
including any Lender in its capacity as Issuing Bank, and
collectively with the Agent, the "Secured Parties") now or
hereafter party to the Credit Agreement (as defined below). All
capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned thereto in either or both
of the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to the
Borrower a certain revolving credit facility with a letter of
credit sublimit and a swingline sublimit pursuant to the Credit
Agreement dated as of January 30, 1998 among the Borrower, the
Agent and the Lenders (as from time to time amended, revised,
modified, supplemented, or amended and restated the "Credit
Agreement"); and
WHEREAS, as a condition precedent to the Lenders'
obligations to make the Loans or to issue Letters of Credit, the
Pledgors are required to execute and deliver to the Agent a copy
of this Agreement on or before the Effective Time (as defined
herein);
WHEREAS, the Secured Parties are unwilling to enter into the
Loan Documents unless the Pledgors enter into this Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to
enter into the Loan Documents and to make Loans and issue Letters
of Credit and in consideration of the premises and the mutual
agreements, provisions and covenants contained herein, the
Pledgors and the Agent hereby agree as follows:
1. DEFINITIONS. The following capitalized terms used in
this Agreement shall have the following meanings notwithstanding
any definition thereof in the Credit Agreement. Other
capitalized terms used but not defined herein shall have the
meanings therefor set forth in the Credit Agreement.
"Collateral" means (a) all funds from time to time on
deposit in the LC Account; (b) all Investments and all
certificates and instruments from time to time representing or
evidencing such Investments; (c) all notes, certificates of
deposit, checks and other instruments from time to time hereafter
delivered to or otherwise possessed by the Agent for or on behalf
of the Pledgors in substitution for or in addition to any or all
of the Collateral described in clause (a) or (b) above; (d) all
interest, dividends, cash, instruments and other property from
H-2<PAGE>
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Collateral
described in clause (a), (b) or (c) above; and (e) to the extent
not covered by clauses (a) through (d) above, all proceeds of any
or all of the foregoing Collateral.
AEffective Time" means the Closing Date as defined in the
Credit Agreement.
"Investments" means those investments, if any, made by the
Agent pursuant to Section 5 hereof.
"LC Account" means the cash collateral account established
and maintained pursuant to Section 2 hereof.
"Secured Obligations" means (i) all Obligations of the
Pledgors now existing or hereafter arising under or in respect of
the Credit Agreement or the Notes (including, without limitation,
the Pledgors' obligation to pay principal and interest and all
other charges, fees, expenses, commissions, reimbursements,
indemnities and other payments related to or in respect of the
obligations contained in the Credit Agreement or the Notes) or
any documents or agreement related to the Credit Agreement or the
Notes; and (ii) without duplication, all obligations of the
Pledgors now or hereafter existing under or in respect of this
Agreement, including, without limitation, with respect to all
charges, fees, expenses, commissions, reimbursements, indemnities
and other payments related to or in respect of the obligations
contained in this Agreement.
2. LC ACCOUNT; CASH COLLATERALIZATION OF LETTERS OF CREDIT.
(i) At any time, in the Agent's sole discretion, the
Agent shall establish and maintain at its offices at 100
North Tryon Street, Charlotte, North Carolina, in the name
of the Agent and under the sole dominion and control of the
Agent, a cash collateral account designated as Miller
Industries, Inc. Cash LC Account (the "LC Account").
(ii) (A) In accordance with Article X of the
Credit Agreement, in the event that an Event of Default has
occurred and is continuing and Pledgors are required to
deposit with the Agent an amount equal to the maximum amount
remaining undrawn or unpaid under the Letters of Credit, or
(B) as otherwise agreed by the parties hereto to provide
cash collateral for the undrawn amount of any Letter of
Credit other than after the occurrence and during the
continuation of an Event of Default, the Agent shall, upon
receipt of any such amounts, deposit such amounts into the
LC Account to be held pursuant to the terms of this
Agreement. Upon a drawing under the Letters of Credit in
respect of which any amounts described above have been
deposited in the LC Account, the Agent shall apply such
amounts to reimburse the Issuing Bank for the amount of such
drawing. In the event the Letters of Credit are canceled or
expire or in the event of any reduction in the maximum
amount available at any time for drawing under such Letters
of Credit (the "Maximum Available Amount"), the Agent shall
apply the amount then in the LC Account less the Maximum
2
H-3
<PAGE>
Available Amount immediately after such cancellation,
expiration or reduction, first, to the cash
collateralization of the Letters of Credit if the Pledgors
have failed to pay all or a portion of the maximum amounts
described in the first sentence of this clause (ii), and
second, to the payment in full of the outstanding Secured
Obligations and third, the balance, if any, to the Pledgors
or as otherwise required by law.
(iii) The Agent is hereby authorized to sell, and
shall sell, all or any designated part of the Collateral (A)
so long as no Default or Event of Default shall have
occurred and be continuing, upon the receipt of appropriate
written instructions from Pledgors, or (B) in any event if
such sale is necessary to permit the Agent to perform its
duties hereunder or under the Credit Agreement. The Agent
shall have no responsibility and the Pledgors hereby agree
to hold the Agent and the Lenders harmless for any loss in
the value of the Collateral resulting from a fluctuation in
interest rates or otherwise. The net proceeds of the sale
or payment of any such investment shall constitute part of
the Collateral and be held in the LC Account by the Agent.
3. PLEDGE; SECURITY FOR SECURED OBLIGATIONS. The Pledgors
hereby grant and pledge to the Agent, for itself and on behalf of
the Secured Parties, a first priority lien and security interest
in the Collateral now existing or hereafter arising or acquired,
as collateral security for the prompt payment in full when due,
whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and
other amounts which would accrue and become due but for the
filing of a petition in bankruptcy or the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code), of
all Secured Obligations.
4. DELIVERY OF COLLATERAL. All certificates or
instruments, if any, representing or evidencing the Collateral
shall be delivered to the Agent for the benefit of the Secured
Parties in the form of immediately available funds.
5. INVESTING OF AMOUNTS IN THE LC ACCOUNT; AMOUNTS HELD BY
THE AGENT. Cash held by the Agent in the LC Account shall not be
invested or reinvested except as provided in this Section 5.
(i) Except as otherwise provided in Section 12 hereof
and provided that the lien and security interest in favor of
the Agent for the benefit of the Secured Parties remains
perfected and so long as no Event of Default shall have
occurred and be continuing, any funds on deposit in the LC
Account may, or upon the written request of Pledgors shall,
be invested by the Agent in cash equivalents.
(ii) The Agent shall have no responsibility and
the Pledgors hereby agree to hold the Agent and the Lenders
harmless for any loss in the value of the Collateral
resulting from a fluctuation in interest rates or otherwise.
Any interest on Investments permitted hereunder and the net
proceeds of the sale or payment of any such Investments
shall constitute part of the Collateral and be held in the
LC Account by the Agent.
3
H-4<PAGE>
6. REPRESENTATIONS AND WARRANTIES. In addition to its
representations and warranties made pursuant to Article VII of
the Credit Agreement, the Pledgors represent and warrant to the
Agent (for itself and as agent on behalf of the Secured Parties),
that the following statements are true, correct and complete:
(i) At the time the Pledgors deliver the Collateral
(or any portion thereof) to the Agent, the Pledgors will be
the legal and beneficial owner of the Collateral free and
clear of any Lien except for the lien and security interest
created by this Agreement; and
(ii) At the time the LC Account has been created and
the Collateral deposited into the LC Account, the pledge and
assignment of the Collateral pursuant to this Agreement
creates a valid and perfected first priority security
interest in the Collateral, securing the payment of the
Secured Obligations.
7. FURTHER ASSURANCES. The Pledgors agree that at any
time and from time to time, at the Pledgors' expense, the
Pledgors will promptly execute and deliver to the Agent any
further instruments and documents, and take any further actions,
that may be necessary or that the Agent may reasonably request in
order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Agent to exercise
and enforce its rights and remedies hereunder with respect to any
Collateral.
8. TRANSFERS AND OTHER LIENS. Each of the Pledgors agree
that it will not (a) sell or otherwise dispose of any of the
Collateral, or (b) create or permit to exist any Lien upon or
with respect to any of the Collateral, except for the Lien and
security interest created by this Agreement and the Credit
Agreement.
9. THE AGENT APPOINTED ATTORNEY-IN FACT. Pledgors
hereby appoint the Agent as their attorney-in-fact for the
purposes of carrying out the provisions of this Agreement and
taking any action and executing any instrument which the Agent
may deem necessary or advisable to accomplish the purposes
hereof, which appointment is coupled with an interest and is
irrevocable; provided, that the Agent shall have and may exercise
rights under this power of attorney only upon the occurrence and
during the continuance of an Event of Default. Without limiting
the generality of the foregoing, upon the occurrence and during
the continuation of an Event of Default, the Agent shall have the
power to receive, endorse and collect all instruments made
payable to the Pledgors representing any payment, dividend or
other distribution in respect of the Collateral or any part
thereof and to give full discharge for the same. In performing
its functions and duties under this Agreement, the Agent shall
act solely for itself and as the agent of the Lenders and the
Agent has not assumed nor shall be deemed to have assumed any
obligation towards or relationship of agency or trust with or for
the Pledgors.
10. THE AGENT MAY PERFORM. If Pledgors fail to perform any
agreement contained herein, after notice to Pledgors, the Agent
may itself perform, or cause performance of, such agreement, and
4
H-5<PAGE>
the expenses of the Agent incurred in connection therewith shall
be payable by Pledgors under Section 13 hereof.
11. STANDARD OF CARE; NO RESPONSIBILITY FOR CERTAIN
MATTERS. In dealing with the Collateral in its possession, the
Agent shall exercise the same care which it would exercise in
dealing with similar collateral property pledged by others in
transactions of a similar nature, but it shall not be responsible
for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters
relative to any Collateral, whether or not the Agent has or is
deemed to have knowledge of such matters, (b) taking any steps to
preserve rights against any parties with respect to any
Collateral (other than steps taken in accordance with the
standard of care set forth above to maintain possession of the
Collateral), (c) the collection of any proceeds, (d) any loss
resulting from Investments made pursuant to Section 5 hereof, or
(e) determining (x) the correctness of any statement or
calculation made by the Pledgors in any written instructions, or
(y) whether any deposit in the LC Account is proper.
12. REMEDIES UPON ACCELERATION; APPLICATION OF PROCEEDS.
If the Borrower shall fail to perform any action required
hereunder or shall otherwise breach any term or provision hereof
(a "Default" hereunder) which Default shall not have been waived
in accordance with Section 12.6 of the Credit Agreement:
(i) The Agent may and shall at the request of the
Required Lenders or the Issuing Bank exercise in respect of
the Collateral, in addition to other rights and remedies
provided for herein otherwise available to it, all the
rights and remedies of a secured party on default under the
Uniform Commercial Code (the "Code") as applicable to the
Collateral, and the Agent may, without notice except as
specified below, sell the Collateral or any part thereof in
one or more parcels at public or private sale, at any
exchange or broker's board or at any of the Agent's offices
or elsewhere, for cash, on credit or for future delivery,
and at such price or prices, and upon such other terms as
the Agent may deem commercially reasonable. Pledgors agree
that, to the extent notice of sale shall be required by law,
at least ten (10) days' notice to Pledgors of the time and
place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification.
The Agent shall not be obligated to make any sale of the
Collateral regardless of notice of sale having been given.
The Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made
at the time and place to which it was so adjourned.
(ii) In addition to the remedies set forth in part (i)
above and subject to the provisions of Section 2(ii)
hereof, any cash held by the Agent as Collateral and all
cash proceeds received by the Agent in respect of any sale
of, collection from, or other realization upon all or part
of the Collateral shall be applied (after payment of any
amounts payable to the Agent pursuant to Section 13 hereof)
by the Agent to pay the Secured Obligations pursuant to
Section 10.5 of the Credit Agreement.
5
H-6<PAGE>
13. EXPENSES. In addition to any payments of expenses of
the Agent pursuant to the Credit Agreement or the other Loan
Documents, the Pledgors agree to pay promptly to the Agent all
the costs and expenses, including reasonable attorneys fees and
expenses, which the Agent may incur in connection with (a) the
custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (b) the exercise
or enforcement of any of the rights of the Agent hereunder, or
(c) the failure by the Pledgors to perform or observe any of the
provisions hereof.
14. NO DELAYS; WAIVER, ETC. No delay or failure on the
part of the Agent in exercising, and no course of dealing with
respect to, any power or right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the
Agent of any power or right hereunder preclude other or further
exercise thereof or the exercise of any other power or right.
15. AMENDMENTS, ETC. No amendment, modification,
termination or waiver of any provision of this Agreement, or
consent to any departure by the Pledgors therefrom, shall in any
event be effective without the written concurrence of the Agent.
16. CONTINUING SECURITY INTEREST; TERMINATION. This
Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until
all Secured Obligations (other than Secured Obligations in the
nature of continuing indemnities or expense reimbursement
obligations not yet due and payable) shall have been indefeasibly
paid in full in cash, the commitments or other obligations of the
Agent or any Lender to make any Loan under the Credit Agreement
shall have expired, the Letters of Credit shall have expired and
the Revolving Credit Termination Date shall have occurred, (b) be
binding upon each of the Pledgors, its successors and assigns,
and (c) inure to the benefit of the Agent, the Secured Parties
and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c) and
subject to the provisions of the Credit Agreement, any Lender may
assign or otherwise transfer any Note held by it to any other
person or entity, and such other person or entity shall thereupon
become vested with all the benefits in respect thereof granted to
such Lender herein or otherwise. Upon the indefeasible payment
in full in cash of the Secured Obligations (other than Secured
Obligations in the nature of continuing indemnities or expense
reimbursement obligations not yet due and payable), and the
cancellation or expiration of the Letters of Credit and
termination or expiration of all commitments and other
obligations of the Agent and any Lender to make any Loan and the
occurrence of the Revolving Credit Termination Date, Pledgors
shall be entitled, subject to the provisions of Section 12
hereof, to the return, upon its request and at its expense, of
such of the Collateral as shall not have been sold or otherwise
applied pursuant to the terms hereof.
17. Successors and Assigns. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party and
all covenants, promises, and agreements by or on behalf of the
Pledgors or by and on behalf of the Agent shall bind and inure to
the benefit of the successors and assigns of the Pledgors, the
6
H-7<PAGE>
Agent and the Lenders.
18. ANTI-MARSHALLING PROVISIONS. The right is hereby given
by the Pledgors to the Agent, for the benefit of the Secured
Parties, to make releases (whether in whole or in part) of all or
any part of the Collateral agreeable to the Agent without notice
to, or the consent, approval or agreement of other parties and
interests, including junior lienors, which releases shall not
impair in any manner the validity of or priority of the Liens and
security interests in the remaining Collateral conferred under
such documents, nor release the Pledgors from personal liability
for the Secured Obligations hereby secured. Notwithstanding the
existence of any other security interest in the Collateral held
by the Agent, for the benefit of the Secured Parties, the Agent
shall have the right to determine the order in which any or all
of the Collateral shall be subjected to the remedies provided in
this Agreement. The proceeds realized upon the exercise of the
remedies provided herein shall be applied by the Agent, for the
benefit of the Secured Parties, in the manner provided in Section
10.5 of the Credit Agreement. Each of the Pledgors hereby waives
any and all right to require the marshalling of assets in
connection with the exercise of any of the remedies permitted by
applicable law or provided herein.
19. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the
Secured Parties, and all obligations of the Pledgors hereunder,
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document or any other
agreement or instrument relating to any of the Secured
Obligations;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Secured
Obligations, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument
relating to any of the Secured Obligations, including but
not limited to (i) an increase or decrease in the Secured
Obligations and (ii) an amendment of any Loan Document to
permit the Agent or the Lenders or any one or more of them
to extend further or additional credit to the Pledgors in
any form including credit by way of loan, purchase of
assets, guarantee or otherwise, which credit shall thereupon
be and become subject to the Credit Agreement and the other
Loan Documents as a Secured Obligation;
(c) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for all or any of
the Secured Obligations; or
(d) any other circumstances (including without
limitation any statute of limitations) which might otherwise
constitute a defense available to, or a discharge of, the
Pledgors or any Guarantor.
20. ENTIRE AGREEMENT. This Agreement, together with the
Credit Agreement, the Guaranty Agreement and other Loan
7
H-8
<PAGE>
Documents, constitutes and expresses the entire understanding
between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings,
inducements, commitments or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof
control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof. Neither this
Agreement nor any portion or provision hereof may be changed,
altered, modified, supplemented, discharged, canceled, terminated
or amended orally or in any manner other than by an agreement, in
writing signed by the parties hereto.
21. FURTHER ASSURANCES. Each of the Pledgors agrees at its
own expense to do such further acts and things, and to execute
and deliver such additional conveyances, assignments, financing
statements, agreements and instruments, as the Agent may at any
time reasonably request in connection with the administration or
enforcement of this Agreement or related to the Collateral or any
part thereof or in order better to assure and confirm unto the
Agent its rights, powers and remedies for the benefit of the
Secured Parties hereunder. The Pledgors hereby consent and agree
that the issuers of or obligors in respect of the Collateral
shall be entitled to accept the provisions hereof as conclusive
evidence of the right of the Agent, on behalf of the Secured
Parties, to exercise its rights hereunder with respect to the
Collateral, notwithstanding any other notice or direction to the
contrary heretofore or hereafter given by either of the Pledgors
or any other Person to any of such issuers or obligors.
22. BINDING AGREEMENT; ASSIGNMENT. This Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and
inure to the benefit of the parties hereto, and to their
respective successors and assigns, except that the Pledgors shall
not be permitted to assign this Agreement or any interest herein
or in the Collateral, or any part thereof, or otherwise pledge,
encumber or grant any option with respect to the Collateral, or
any part thereof, or any cash or property held by the Agent as
Collateral under this Agreement. All references herein to the
Agent shall include any successor thereof, each Lender and any
other obligees from time to time of the Obligations.
23. SWAP AGREEMENTS. All obligations of the Borrower under
Swap Agreements shall be deemed to be Secured Obligations secured
hereby, and each Lender or affiliate of a Lender party to any
such Swap Agreement shall be deemed to be a Secured Party
hereunder.
24. SEVERABILITY. In case any Lien, security interest or
other right of any Secured Party or any provision hereof shall be
held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien,
security interest or other right granted hereby or provision
hereof.
25. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and all the counterparts taken together
shall be deemed to constitute one and the same instrument.
26. INDEMNIFICATION. Without limitation of Section 12.9 of
the Credit Agreement or any other indemnification provision in
8
H-9
<PAGE>
any Loan Document, the Pledgors hereby covenant and agree to pay,
indemnify, and hold the Secured Parties harmless from and against
any and all other out-of-pocket liabilities, costs, expenses or
disbursements of any kind or nature whatsoever arising in
connection with any claim or litigation by any Person resulting
from the execution, delivery, enforcement, performance and
administration of this Agreement or the Loan Documents, or the
transactions contemplated hereby or thereby, or in any respect
relating to the Collateral or any transaction pursuant to which
either of the Pledgors has incurred any Obligation (all the
foregoing, collectively, the "indemnified liabilities");
provided, however, that the Pledgors shall have no obligation
hereunder with respect to indemnified liabilities directly or
primarily arising from the willful misconduct or gross
negligence of the Agent or any Lender. The agreements in this
subsection shall survive repayment of all Secured Obligations,
termination or expiration of this Agreement and occurrence of the
Revolving Credit Termination Date.
27. REMEDIES CUMULATIVE. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies
of the Agent provided by law or under the Credit Agreement, the
other Loan Documents, or other applicable agreements or
instruments. The making of the Loans to and the issuance of
Letters of Credit for the benefit of the Borrower pursuant to the
Credit Agreement and the extension of the Revolving Credit
Facility to the Borrower pursuant to the Credit Agreement shall
be conclusively presumed to have been made or extended,
respectively, in reliance upon the Pledgors' pledge of the
Collateral pursuant to the terms hereof.
28. NOTICES. Any notice required or permitted hereunder
shall be given, (a) with respect to the Pledgors, at the address
of the Borrower indicated in Section 12.2 of the Credit Agreement
and (b) with respect to the Agent or a Lender, at the Agent's
address indicated in Section 12.2 of the Credit Agreement. All
such notices shall be given and shall be effective as provided in
Section 12.2 of the Credit Agreement.
29. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
(b) EACH OF THE PLEDGORS HEREBY EXPRESSLY AND
IRREVOCABLY AGREES AND CONSENTS THAT ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND
THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN
ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
HAMILTON, STATE OF TENNESSEE, UNITED STATES OF AMERICA OR
THE COUNTY OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED
STATES OF AMERICA, AND, BY THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE PLEDGORS EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING, AND EACH OF THE PLEDGORS HEREBY IRREVOCABLY
9
H-10<PAGE>
SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF
ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH OF THE PLEDGORS AGREES THAT SERVICE OF
PROCESS MAY BE MADE BY PERSONAL SERVICE OF A COPY OF THE
SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH
SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR CERTIFIED
MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 12.2 OF THE CREDIT AGREEMENT, OR BY ANY
OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE
LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) or (b) HEREOF
SHALL PRECLUDE ANY SECURED PARTY FROM BRINGING ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE THE PLEDGORS OR ANY OF THE PLEDGORS'
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION
THEREWITH, EACH PARTY HERETO HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY AND HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL
BY JURY IN ANY SUCH ACTION OR PROCEEDING.
[Signature page follows.]
10
H-11
<PAGE>
IN WITNESS WHEREOF, the undersigned Pledgors and the Agent
have caused this LC Account Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized
as of the date first above written.
MILLER INDUSTRIES, INC.
By:________________________________
Name:______________________________
Title:_____________________________
MILLER INDUSTRIES TOWING
EQUIPMENT INC.
By:________________________________
Name:______________________________
Title:_____________________________
NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as Agent for the Lenders
By:________________________________
Name:______________________________
Title:_____________________________
LC ACCOUNT AGREEMENT
SIGNATURE PAGE 1 OF 1
H-12<PAGE>
EXHIBIT I
Form of Negative Pledge Agreement
[See Attached]
I-1
<PAGE>
FORM OF
NEGATIVE PLEDGE AGREEMENT
THIS AGREEMENT is entered into by and among MILLER
INDUSTRIES, INC., a Tennessee corporation with its principal
offices in Ooltewah, Tennessee ("Miller"), MILLER INDUSTRIES
TOWING EQUIPMENT INC., a Delaware corporation with its principal
offices in Ooltewah, Tennessee ("Miller Towing," and together
with Miller, the "Borrowers"), and EACH OF THE UNDERSIGNED
SUBSIDIARIES OF MILLER (collectively the "Guarantors"), and
NATIONSBANK OF TENNESSEE, NA, a national banking association with
its offices in Chattanooga, Tennessee ("NationsBank")
(hereinafter referred to as "Agent"), as agent for each of the
Lenders (the "Lenders") as a party to the Credit Agreement (as
defined below). All capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in
the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Borrowers, Agent and Lenders have entered into that
certain Credit Agreement dated as of January 30, 1998 (the
"Credit Agreement") and the Guarantors and the Agent have entered
into that certain Guaranty Agreement dated as of ___________,
19__ (the "Guaranty Agreement"); and
WHEREAS, pursuant to the Credit Agreement, the Lenders will
advance credit pursuant to the terms and conditions thereof; and
WHEREAS, as one of the terms of the Credit Agreement,
Borrowers and Guarantors have agreed to execute a Negative Pledge
Agreement whereby Borrowers and Guarantors agree that they will
not sell, lease, transfer or otherwise dispose of, or grant a
lien on, any of their accounts receivable, inventory, equipment
and other assets and any capital stock of the Guarantors, whether
now existing or acquired in the future, without the prior written
consent of Required Lenders until the Revolving Credit
Termination Date, except as specifically permitted by the Credit
Agreement; and
WHEREAS, in consideration of the mutual covenants and
conditions set forth herein and in consideration of the
extensions of credit by the Lenders to or for the benefit of the
Borrowers and Guarantors contemplated under the Credit Agreement
and the other Loan Documents executed in relation thereto, the
legal sufficiency of which are irrevocably acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. NEGATIVE PLEDGE. Borrowers and Guarantors agree that
they will not sell, lease, transfer or otherwise dispose of, or
incur or permit to exist any Lien, charge or encumbrance of any
nature with respect to any of their accounts receivable,
inventory, equipment and other assets and any capital stock of
the Guarantors, whether now existing or acquired in the future
without the prior written consent of the Required Lenders, except
as permitted by the Credit Agreement.
2. CERTAIN MORTGAGES PERMITTED. Nothing contained in this
Negative Pledge Agreement shall be construed to prohibit any
mortgages and other encumbrances on real estate of Champion
Carrier Corporation or any successor thereof located in
I-2
<PAGE>
Hermitage, Pennsylvania, granted by Champion Carrier Corporation
or its successor to secure the indebtedness incurred in
purchasing its Hermitage, Pennsylvania facility.
3. EFFECT OF DEFAULT. A breach of the terms and
conditions of this Negative Pledge Agreement shall constitute an
"Event of Default" under Section 10.1 of the Credit Agreement, as
the term "Event of Default" is defined in the Credit Agreement
and the Agent and Lenders shall be entitled to all rights and
remedies as set forth in the Credit Agreement.
IN WITNESS WHEREOF, the parties intending to be legally
bound have executed this Negative Pledge Agreement as of this
____ day of ________, 19__.
BORROWERS:
MILLER INDUSTRIES, INC.
By:______________________________________
Name:___________________________________
Title:___________________________________
MILLER INDUSTRIES TOWING
EQUIPMENT INC.
By:______________________________________
Name:___________________________________
Title:___________________________________
2
I-3
<PAGE>
GUARANTORS:
[LIST GUARANTORS]
By:________________________________________
Name:_____________________________________
Title:______________________________________
3
I-4
<PAGE>
AGENT:
NATIONSBANK OF TENNESSEE, NA, as Agent
By:______________________________________
Name:___________________________________
Title:____________________________________
4
I-5
<PAGE>
STATE OF TENNESSEE
COUNTY OF HAMILTON
BEFORE ME personally appeared _____________________
__________, with whom I am personally acquainted (or proved to
me on the basis of satisfactory evidence), and who, upon oath,
acknowledged himself to be ____________ President of ___________
_____________, the within-named corporation, and that he as such
officer, executed the foregoing instrument for the purpose therein
contained, by signing the name of the corporation by himself as
such officer.
WITNESS my hand and seal, at office, on this ________ day
of__________, 19__.
_____________________________________
Notary Public
My commission expires:_______________
STATE OF TENNESSEE
COUNTY OF HAMILTON
BEFORE ME personally appeared ___________________, with whom
I am personally acquainted (or proved to me on the basis of
satisfactory evidence), and who, upon oath, acknowledged himself
to be ___________ of NationsBank of Tennessee, NA, the within-
named corporation, and that he as such officer, executed the
foregoing instrument for the purpose therein contained, by
signing the name of the corporation by himself as such officer.
WITNESS my hand and seal, at office, on this ________ day
of__________, 19__.
_____________________________________
Notary Public
My commission expires:_______________
5
I-6
<PAGE>
EXHIBIT J-1
Form of Revolving Note
Promissory Note
(Revolving Loan)
$__________________________ Charlotte, North Carolina
_______ __, ____
FOR VALUE RECEIVED, MILLER INDUSTRIES, INC., a Tennessee
corporation having its principal place of business located in
Ooltewah, Tennessee ("Miller") and MILLER INDUSTRIES TOWING
EQUIPMENT INC., a Delaware corporation having its principal place
of business located in Ooltewah, Tennessee ("Miller Towing")
(Miller and Miller Towing each are referred to as a "Borrower"
and collectively, the "Borrowers"), hereby promise to pay to the
order of ________________________________ (the "Lender"), in its
individual capacity, at the office of NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION, as agent for the Lenders (the "Agent"),
located at One Independence Center, 101 North Tryon Street, NC1-
001-15-04, Charlotte, North Carolina 28255 (or at such other
place or places as the Agent may designate in writing) at the
times set forth in the Credit Agreement dated as of January 30,
1998 among the Borrowers, the financial institutions party
thereto (collectively, the "Lenders") and the Agent (as amended,
supplemented or restated and in effect from time to time, the
"Agreement"; all capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Agreement),
in lawful money of the United States of America in immediately
available funds, the principal amount of
_______________________________ DOLLARS ($___________) or, if
less than such principal amount, the aggregate unpaid principal
amount of all Loans made by the Lender to the Borrowers pursuant
to the Agreement on the Revolving Credit Termination Date or such
earlier date as may be required pursuant to the terms of the
Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the
dates and at the rates provided in Article II of the Agreement.
All or any portion of the principal amount of Loans may be
prepaid or required to be prepaid as provided in the Agreement.
Each Borrower shall be jointly and severally liable as a
primary obligor.
If payment of all sums due hereunder is accelerated under
the terms of the Agreement or under the terms of the other Loan
Documents executed in connection with the Agreement, the then
remaining principal amount and accrued but unpaid interest
thereafter shall bear interest which shall be payable on demand
at the rates per annum set forth in the proviso to Section 2.2(a)
of the Agreement or the maximum rate permitted under applicable
law, if lower, until such principal and interest have been paid
in full. Further, in the event of such acceleration, this Note
shall become immediately due and payable, without presentation,
demand, protest or notice of any kind, all of which are hereby
waived by the Borrowers.
J-1-1<PAGE>
In the event any amount evidenced by this Note is not paid
when due at any stated or accelerated maturity, the Borrowers
agree to pay, in addition to the principal and interest, all
costs of collection, including reasonable attorneys' fees and
disbursements, and interest due hereunder thereon at the rates
set forth above.
Interest hereunder shall be computed as provided in the
Agreement.
This Note is one of the Notes referred to in the Agreement
and is issued pursuant to and entitled to the benefits and
security of the Agreement to which reference is hereby made for a
more complete statement of the terms and conditions upon which
the Loans evidenced hereby were or are made and are to be repaid.
This Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or
secondarily liable as principals, sureties, guarantors, endorsers
or otherwise, hereby waive to the full extent permitted by law
the benefits of all provisions of law for stay or delay of
execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment
be obtained and execution issued against any other of them and
returned satisfied or until it can be shown that the maker or any
other party hereto had no property available for the satisfaction
of the debt evidenced by this instrument, or until any other
proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this
Note any collateral deposited by any of said Persons as security.
Protest, notice of protest, notice of dishonor, dishonor, demand
or any other formality are hereby waived by all parties bound
hereon.
This Note shall be governed by and construed in accordance
with the law of the State of Georgia.
J-1-2<PAGE>
IN WITNESS WHEREOF, each of the Borrowers has caused this
Note to be made, executed and delivered by its duly authorized
representative as of the date and year first above written, all
pursuant to authority duly granted.
MILLER INDUSTRIES, INC.
ATTEST:
By:_______________________________
______________________________________ Name:_____________________________
__________ Secretary Title:____________________________
(SEAL)
MILLER INDUSTRIES TOWING EQUIPMENT INC.
ATTEST:
By:_______________________________
______________________________________ Name:_____________________________
__________ Secretary Title:____________________________
(SEAL)
J-1-3<PAGE>
EXHIBIT J-2
Form of Swing Line Note
Promissory Note
(Swing Line Loan)
$5,000,000 Charlotte, North Carolina
January 30, 1998
FOR VALUE RECEIVED, MILLER INDUSTRIES, INC., a Tennessee
corporation having its principal place of business located in
Ooltewah, Tennessee ("Miller") and MILLER INDUSTRIES TOWING
EQUIPMENT INC., a Delaware corporation having its principal place
of business located in Ooltewah, Tennessee ("Miller Towing")
(Miller and Miller Towing each are referred to as a "Borrower"
and collectively, the "Borrowers"), hereby promise to pay to the
order of NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION (the
"Swing Line Lender"), in its individual capacity, at the office
of NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, as agent for
the Swing Line Lender (the "Agent"), located at One Independence
Center, 101 North Tryon Street, NC1-001-15-04, Charlotte, North
Carolina 28255 (or at such other place or places as the Agent may
designate in writing) at the times set forth in the Credit
Agreement dated as of January 30, 1998 among the Borrowers, the
financial institutions party thereto (collectively, the
"Lenders") and the Agent (as amended, supplemented or restated
and in effect from time to time, the "Agreement"; all capitalized
terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the
United States of America, in immediately available funds, the
principal amount of FIVE MILLION AND NO/100 DOLLARS ($5,000,000)
or, if less than such principal amount, the aggregate unpaid
principal amount of all Swing Line Loans made by the Swing Line
Lender to the Borrowers pursuant to the Agreement on the
Revolving Credit Termination Date or such earlier date as may be
required pursuant to the terms of the Agreement, and to pay
interest from the date hereof on the unpaid principal amount
hereof, in like money, at said office, on the dates and at the
rates provided in Article II of the Agreement. All or any
portion of the principal amount of Swing Line Loans may be
prepaid or required to be prepaid as provided in the Agreement.
Each Borrower shall be jointly and severally liable as a
primary obligor.
If payment of all sums due hereunder is accelerated under
the terms of the Agreement or under the terms of the other Loan
Documents executed in connection with the Agreement, the then
remaining principal amount and accrued but unpaid interest
thereafter shall bear interest which shall be payable on demand
at the rates per annum set forth in the proviso to Section 2.2(a)
of the Agreement or the maximum rate permitted under applicable
law, if lower, until such principal and interest have been paid
in full. Further, in the event of such acceleration, this Swing
Line Note shall become immediately due and payable, without
presentation, demand, protest or notice of any kind, all of which
are hereby waived by the Borrowers.
J-2-1<PAGE>
In the event any amount evidenced by this Swing Line Note is
not paid when due at any stated or accelerated maturity, the
Borrowers agree to pay, in addition to the principal and
interest, all costs of collection, including reasonable
attorneys' fees, and interest due hereunder thereon at the rates
set forth above.
Interest hereunder shall be computed as provided in the
Agreement.
This Note is the Swing Line Note referred to in the
Agreement and is issued pursuant to and entitled to the benefits
and security of the Agreement to which reference is hereby made
for a more complete statement of the terms and conditions upon
which the Swing Line Loans evidenced hereby were or are made and
are to be repaid. This Note is subject to certain restrictions
on transfer or assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or
secondarily liable as principals, sureties, guarantors, endorsers
or otherwise, hereby waive to the full extent permitted by law
the benefits of all provisions of law for stay or delay of
execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment
be obtained and execution issued against any other of them and
returned satisfied or until it can be shown that the maker or any
other party hereto had no property available for the satisfaction
of the debt evidenced by this instrument, or until any other
proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this
Swing Line Note any collateral deposited by any of said Persons
as security. Protest, notice of protest, notice of dishonor,
dishonor, demand or any other formality are hereby waived by all
parties bound hereon.
This Swing Line Note shall be governed by and construed in
accordance with the law of the State of Georgia.
J-2-2<PAGE>
IN WITNESS WHEREOF, each of the Borrowers has caused this
Swing Line Note to be made, executed and delivered by its duly
authorized representative as of the date and year first above
written, all pursuant to authority duly granted.
MILLER INDUSTRIES, INC.
ATTEST:
By:_______________________________
______________________________________ Name:_____________________________
__________ Secretary Title:____________________________
(SEAL)
MILLER INDUSTRIES TOWING EQUIPMENT INC.
ATTEST:
By:_______________________________
______________________________________ Name:_____________________________
__________ Secretary Title:____________________________
(SEAL)
J-2-3<PAGE>
EXHIBIT K-1
Form of Stock Pledge Agreement (Miller)
[See Attached]
K-1-1<PAGE>
FORM OF
STOCK PLEDGE AGREEMENT
(Miller Industries, Inc.)
THIS STOCK PLEDGE AGREEMENT (the "Agreement") is made and
entered into as of this ____ day of _______, 19__ by and between
MILLER INDUSTRIES, INC., a Tennessee corporation (the "Pledgor"),
and NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the
United States, as Agent (the "Agent") for each of the financial
institutions (the "Lenders" and collectively with the Agent the
"Secured Parties") now or hereafter party to the Credit Agreement
(as defined below). All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned
thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to the
Pledgor and to Miller Industries Towing Equipment Inc. ("Miller
Towing," and together with the Pledgor, the "Borrower") certain
credit facilities, including a revolving credit facility with a
letter of credit sublimit and a swing line sublimit, pursuant to
the Credit Agreement dated as of January 30, 1998 among the
Borrower, the Agent and the Lenders (as from time to time
amended, revised, modified, supplemented, or amended and restated
the "Credit Agreement"); and
WHEREAS, as collateral security for the payment and
performance of the Borrower's Obligations, the Pledgor is willing
to pledge and grant to the Agent for the benefit of the Lenders a
security interest in all of the issued and outstanding shares of
capital stock, whether now in existence or hereafter issued, of
each of its Domestic Subsidiaries, and 65% (or such lesser
percentage as Pledgor shall own) of the issued and outstanding
shares of capital stock or equivalent indicia of ownership under
the law or practice of any foreign jurisdiction, whether now in
existence or hereafter issued, of each of its Direct Foreign
Subsidiaries, all of which are required to be subject to a Pledge
Agreement pursuant to the Credit Agreement (the "Pledged Stock"),
including without limitation the Pledged Stock in such
Subsidiaries more particularly described on Schedule I hereto
(such Subsidiaries, together with all other Subsidiaries whose
capital stock may be required to be subject to a Pledge Agreement
from time to time, are hereinafter referred to collectively as
the "Pledged Subsidiaries"); and
WHEREAS, the Secured Parties are unwilling to enter into the
Loan Documents unless the Pledgor enters into this Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to
enter into the Loan Documents, to extend credit to the Borrower
and to make loans and advances and issue letters of credit and in
consideration of the premises and the mutual covenants contained
herein, the parties hereto agree as follows:
1. PLEDGE OF STOCK; OTHER COLLATERAL.
(a) As collateral security for the payment and performance
by the Borrower of its now or hereafter existing Obligations (the
"Secured Obligations"), the Pledgor hereby pledges and
K-1-2
<PAGE>
collaterally assigns to the Agent for the benefit of the Lenders,
and grants to the Agent for the benefit of the Lenders a first
priority lien and security interest in, the Pledged Stock and all
of the following:
(i) all cash, securities, dividends, rights and
other property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of
the Pledged Stock, other than cash dividends permitted to be
retained by the Pledgor under Section 9 hereof;
(ii) all other property hereafter delivered to the
Agent in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or
evidencing such property and all cash, securities, interest,
dividends, rights, and other property at any time and from
time to time declared or distributed in respect of or in
exchange for any or all of the Pledged Stock; and
(iii) all proceeds of any of the foregoing.
All such Pledged Stock, certificates, instruments, cash,
securities, interest, dividends, rights and other property
referred to in this Section 1, other than cash dividends issued
in respect of such Pledged Stock that are permitted to be
retained by the Pledgor under Section 9 hereof, are herein
collectively referred to as the "Collateral." All of the Pledged
Stock described on Schedule I in effect from time to time is
currently owned by the Pledgor and represented by the stock
certificates listed on Schedule I hereto. Certificates evidencing
all the Pledged Stock on the Closing Date, together with stock
powers duly executed in blank by the Pledgor, have been delivered
to the Agent.
(b) The Pledgor agrees to deliver all the Collateral to the
Agent at such location or locations as the Agent shall from time
to time designate by written notice pursuant to Section 25 hereof
for its custody at all times until termination of this Agreement,
together with such instruments of assignment and transfer as
requested by the Agent.
(c) The Pledgor agrees to deliver all share certificates,
documents, agreements, financing statements, amendments thereto,
assignments or other writings as the Agent may reasonably request
to carry out the terms of this Agreement or to protect or enforce
the lien and security interest in the Collateral hereunder
granted thereby to the Agent for the benefit of the Lenders and
further agrees to do and cause to be done all things determined
by the Agent to be reasonably necessary to perfect and keep in
full force the Lien in the Collateral hereunder granted thereby
in favor of the Agent for the benefit of the Lenders, including,
but not limited to, the prompt payment of all reasonable out-of-
pocket fees and expenses incurred in connection with any filings
made to perfect or continue the lien and security interest in the
Collateral hereunder granted thereby in favor of the Agent for
the benefit of the Lenders. The Pledgor agrees to make
appropriate entries upon its books and records (including without
limitation its stock record and transfer books) disclosing the
Lien in the Collateral hereunder granted thereby to the Agent for
the benefit of the Lenders hereunder.
2
K-1-3
<PAGE>
(d) All advances, charges, reasonable costs and reasonable
expenses, including reasonable attorney's fees, incurred or paid
by the Agent or any Lender in exercising any right, power or
remedy conferred by this Agreement, or in the enforcement
thereof, shall become a part of the Secured Obligations and shall
be paid to the Agent for the benefit of the Lenders by the
Pledgor immediately upon demand therefor, with interest thereon
until paid in full at the Default Rate for Base Rate Loans.
2. STATUS OF PLEDGED STOCK. The Pledgor hereby represents
and warrants to the Agent for the benefit of the Lenders that (i)
all of the shares of Pledged Stock are validly issued and
outstanding, fully paid and nonassessable and constitute all the
authorized, issued and outstanding shares of common stock of each
of the Pledged Subsidiaries which are Domestic Subsidiaries and
65% (or such lesser percentage as Pledgor owns, as indicated on
Schedule I) of the authorized, issued and outstanding shares of
common stock of each of the Pledged Subsidiaries which are Direct
Foreign Subsidiaries, (ii) the Pledgor is the registered and
record and beneficial owner of such Pledged Stock, free and clear
of all Liens, charges, equities, encumbrances and restrictions on
pledge or transfer (other than the Liens created under the Loan
Documents and applicable restrictions imposed by federal and
state securities law), (iii) the Pledgor has full corporate
power, legal right and lawful authority to execute this Agreement
and to pledge, assign and transfer such Pledged Stock in the
manner and form hereof, and (iv) the pledge, assignment and
delivery of such Pledged Stock by the Pledgor to the Agent for
the benefit of the Lenders pursuant to this Agreement creates,
together with the delivery of the certificates evidencing such
Pledged Stock, which delivery has heretofore been accomplished, a
valid and perfected first priority security interest in such
Pledged Stock in favor of the Agent for the benefit of the
Lenders, securing the payment of the Secured Obligations. Except
as permitted under Sections 9.5 or 9.7 of the Credit Agreement,
none of the Pledged Stock (nor any interest therein or thereto)
shall be sold, transferred or assigned, nor any Lien created
therein, without the Agent's prior written consent. The Pledgor
covenants with the Agent for the benefit of the Lenders that it
shall at all times cause the Pledged Stock to be represented by
the certificates now and hereafter delivered to the Agent in
accordance with Section 1 hereof and that it shall not cause,
suffer or permit any of the Pledged Subsidiaries to issue any
capital stock, or securities convertible into, or exercisable or
exchangeable for, capital stock, at any time during the term of
this Agreement other than to the Pledgor and subject to this
Agreement pursuant to Section 23 hereof.
3. PRESERVATION AND PROTECTION OF COLLATERAL.
(a) The Agent shall be under no duty or liability with
respect to the collection, protection or preservation of the
Collateral, or otherwise, other than the obligation to deal with
the Collateral while in its possession in the same manner as the
Agent deals with similar securities or property held as
collateral for loans.
(b) The Pledgor agrees to pay when due all taxes, charges,
Liens and assessments against the Collateral, unless being
contested in good faith by appropriate proceedings diligently
conducted and against which adequate reserves have been
3
K-1-4
<PAGE>
established in accordance with GAAP and evidenced to the
satisfaction of the Agent and provided further that all
enforcement proceedings in the nature of levy or foreclosure are
effectively stayed. Upon the failure of the Pledgor to so pay or
contest such taxes, charges, Liens or assessments, the Agent at
its option may pay or contest any of them (the Agent having the
sole right to determine the legality or validity and the amount
necessary to discharge such taxes, charges, Liens or
assessments).
4. DEFAULT. Upon the occurrence and during the
continuance of any Event of Default, the Agent is given full
power and authority, then or at any time thereafter, to sell,
assign and deliver or collect the whole or any part of the
Collateral, or any substitute therefor or any addition thereto,
in one or more sales, with or without any previous demands or
demand of performance or, to the extent permitted by law, notice
or advertisement, in such order as the Agent may elect; and any
such sale may be made either at public or private sale at the
Agent's place of business or elsewhere, either for cash or upon
credit or for future delivery, at such price as the Agent may
reasonably deem fair; and the Agent may be the purchaser of any
or all Collateral so sold and hold the same thereafter in its own
right free from any claim of the Pledgor or right of redemption.
Demands of performance, advertisements and presence of property
and sale and notice of sale are hereby waived to the extent per-
missible by law and the Pledgor acknowledges that the Collateral
is of a type customarily sold on a recognized market. Any sale
hereunder may be conducted by an auctioneer or any officer or
agent of the Agent. The Pledgor recognizes that the Agent may be
unable to effect a public sale of the Collateral by reason of
certain prohibitions contained in the Securities Act of 1933, as
amended (the "Securities Act"), and applicable law, and may be
otherwise delayed or adversely affected in effecting any sale by
reason of present or future restrictions thereon imposed by
governmental authorities, and that as a consequence of such
prohibitions and restrictions the Agent may be compelled (i) to
resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to
acquire the stock for their own account, for investment and not
with a view to the distribution or resale thereof, or (ii) to
seek regulatory approval of any proposed sale or sales, or
(iii) to limit the amount of Collateral sold to any Person or
group. The Pledgor agrees and acknowledges that private sales so
made may be at prices and upon terms less favorable to the
Pledgor than if such Collateral was sold either at public sales
or at private sales not subject to other regulatory restrictions,
and that the Agent has no obligation to delay the sale of any of
the Collateral for the period of time necessary to permit the
issuer of such Collateral to register or otherwise qualify the
Pledged Stock, even if such issuer would agree to register or
otherwise qualify for public sale under the Securities Act or
applicable state law. The Pledgor agrees that private sales made
under the foregoing circumstances will not, for that reason, be
deemed to have been made in a manner which is not commercially
reasonable. The Pledgor hereby acknowledges that a ready market
may not exist for the Pledged Stock since it is not traded on a
national securities exchange or quoted on an automated quotation
system and agrees and acknowledges that in such event the Pledged
Stock may be sold for an amount less than a pro rata share of the
4
K-1-5
<PAGE>
fair market value of the issuer's assets minus its liabilities.
In addition to the foregoing, the Lenders may exercise such other
rights and remedies as may be available under the Loan Documents,
at law or in equity.
5. PROCEEDS OF SALE. The proceeds of the sale of any of
the Collateral hereunder and all sums received or collected from
or on account of such Collateral shall be applied to the payment
of expenses incurred or paid by the Agent in connection with any
holding, sale, transfer or delivery of the Collateral, to the
payment of any other costs, charges, reasonable attorney's fees
or expenses mentioned herein, and to the payment of the Secured
Obligations or any part thereof, all in such order and manner as
is provided in Section 10.5 of the Credit Agreement and otherwise
as the Agent may determine and as permitted by applicable law.
The Agent shall, upon satisfaction in full of all such Secured
Obligations, pay any balance to the Pledgor or otherwise as may
be required by applicable law.
6. PRESENTMENTS, DEMANDS AND NOTICES. The Agent shall not
be under any duty or obligation whatsoever to make or give any
presentments, demands for performances, notices of nonper-
formance, protests, notice of protest or notice of dishonor in
connection with any obligations or evidences of indebtedness held
thereby as collateral, or in connection with any obligations or
evidences of indebtedness which constitute in whole or in part
the Secured Obligations secured hereunder.
7. ATTORNEY-IN-FACT. The Pledgor hereby appoints the Agent
as the Pledgor's attorney-in-fact for the purposes of carrying
out the provisions of this Agreement and taking any action and
executing any instrument which the Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment is
coupled with an interest and is irrevocable; provided, that the
Agent shall have and may exercise rights under this power of
attorney only upon the occurrence and during the continuance of
an Event of Default. Without limiting the generality of the
foregoing, upon the occurrence and during the continuance of an
Event of Default, the Agent shall have the right and power to
receive, endorse and collect all checks and other orders for the
payment of money made payable to the Pledgor representing any
dividend, interest payment, principal payment or other distribu-
tion payable or distributable in respect of, or otherwise
constituting, the Collateral or any part thereof and to give full
discharge for the same.
8. WAIVER BY PLEDGOR. The Pledgor waives (to the extent
permitted by applicable law) any right to require any Secured
Party or any other obligee of the Secured Obligations to (a)
proceed against any other Pledgor or any Person, including
without limitation any Guarantor, (b) proceed against or exhaust
any Collateral or other collateral for the Secured Obligations,
or (c) pursue any other remedy in its power; and waives (to the
extent permitted by applicable law) any defense arising by reason
of any disability or other defense of any other Pledgor or any
other Person, including without limitation any Guarantor, or by
reason of the cessation from any cause whatsoever of the
liability of any other Pledgor or any other Person, including
without limitation, any Guarantor. The Agent may at any time
deliver (without representation, recourse or warranty) the
5
K-1-6
<PAGE>
Collateral or any part thereof to the Pledgor and the receipt
thereof by the Pledgor shall be a complete and full acquittance
for the Collateral so delivered, and the Agent shall thereafter
be discharged from any liability or responsibility therefor.
9. DIVIDENDS AND VOTING RIGHTS.
(a) All dividends and other distributions with respect to
the Pledged Stock shall be subject to the pledge hereunder,
except for cash dividends permitted to be made under the Credit
Agreement, which may be retained by the Pledgor so long as no
Event of Default shall have occurred and be continuing, and shall
be retained by the Pledgor free from any Lien hereunder. Upon
the occurrence and during the continuance of any Event of
Default, all such cash and other dividends shall be promptly
delivered to the Agent if requested by the Agent (together, if
the Agent shall request, with stock powers or instruments of
assignment duly executed in blank affixed to any stock
certificate or other negotiable document or instrument so
distributed) to be held, released or disposed of by it hereunder
or, at the option of the Agent, to be applied to the Secured
Obligations as they become due.
(b) So long as no Event of Default shall have occurred and
be continuing, the registration of the Collateral in the name of
the Pledgor shall not be changed and the Pledgor shall be
entitled to exercise all voting and other rights and powers
pertaining to the Collateral for all purposes not inconsistent
with the terms hereof.
(c) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Agent, all rights of the
Pledgor to receive and retain dividends upon the Collateral shall
cease and shall thereupon be vested in the Agent for the benefit
of the Lenders.
(d) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Agent, all rights of the
Pledgor to exercise the voting or consensual rights and powers
which it is authorized to exercise with respect to the Collateral
pursuant to subsection (b) above shall cease and the Agent may
thereupon (but shall not be obligated to), at its request, cause
such Collateral to be registered in the name of the Agent or its
nominee or agent for the benefit of the Lenders and exercise such
voting or consensual rights and powers as appertain to ownership
of such Collateral, and to that end the Pledgor hereby appoints
the Agent as its proxy, with full power of substitution, to vote
and exercise all other rights as a shareholder with respect to
the Pledged Stock hereunder upon the occurrence and during the
continuance of any Event of Default, which proxy is coupled with
an interest and is irrevocable prior to termination of this
Agreement as set forth in Section 22 hereof, and the Pledgor
hereby agrees to provide such further proxies as the Agent may
request; provided, however, that the Agent in its discretion may
from time to time refrain from exercising, and shall not be
obligated to exercise, any such voting or consensual rights or
such proxy.
10. POWER OF SALE. Until all of the Secured Obligations
shall have irrevocably been paid in full, the power of sale and
6
K-1-7
<PAGE>
other rights, powers and remedies granted to the Agent for the
benefit of the Lenders hereunder shall continue to exist and may
be exercised by the Agent at any time and from time to time
irrespective of the fact that any Secured Obligations or any part
thereof may have become barred by any statute of limitations or
that the liability of the Pledgor may have ceased.
11. OTHER RIGHTS. The rights, powers and remedies given to
the Agent for the benefit of the Lenders by this Agreement shall
be in addition to all rights, powers and remedies given to any
Lenders by virtue of any statute or rule of law. Any forbearance
or failure or delay by the Agent in exercising any right, power
or remedy hereunder shall not be deemed to be a waiver of such
right, power or remedy, and any single or partial exercise of any
right, power or remedy hereunder shall not preclude the further
exercise thereof. Every right, power and remedy of the Lenders
shall continue in full force and effect until such right, power
or remedy is specifically waived by the Required Lenders by an
instrument in writing.
12. ANTI-MARSHALLING PROVISIONS. The right is hereby given
by the Pledgor to the Agent, for the benefit of the Secured
Parties, to make releases (whether in whole or in part) of all or
any part of the Collateral agreeable to the Agent without notice
to, or the consent, approval or agreement of other parties and
interests, including junior lienors, which releases shall not
impair in any manner the validity of or priority of the Liens and
security interests in the remaining Collateral conferred under
such documents, nor release the Pledgor from personal liability
for the Secured Obligations hereby secured. Notwithstanding the
existence of any other security interest in the Collateral held
by the Agent, for the benefit of the Secured Parties, the Agent
shall have the right to determine the order in which any or all
of the Collateral shall be subjected to the remedies provided in
this Agreement. The proceeds realized upon the exercise of the
remedies provided herein shall be applied by the Agent, for the
benefit of the Secured Parties, in the manner provided in Section
10.5 of the Credit Agreement. The Pledgor hereby waives any and
all right to require the marshalling of assets in connection with
the exercise of any of the remedies permitted by applicable law
or provided herein.
13. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the
Secured Parties, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document or any other
agreement or instrument relating to any of the Secured
Obligations;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Secured
Obligations, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument
relating to any of the Secured Obligations;
(c) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of
7
K-1-8
<PAGE>
or consent to departure from any guaranty, for all or any of
the Secured Obligations; or
(d) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, the
Pledgor in respect of the Secured Obligations or of this
Agreement.
14. DEFINITIONS. All terms used herein unless otherwise
defined in the Credit Agreement shall be defined in accordance
with the appropriate definitions appearing in the Uniform
Commercial Code as in effect in Georgia, and such definitions are
hereby incorporated herein by reference and made a part hereof.
15. ENTIRE AGREEMENT; WAIVERS. This Agreement, together
with the Credit Agreement, the Guaranty Agreement and other Loan
Documents, constitutes and expresses the entire understanding
between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings,
inducements, commitments or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof
control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof. Neither this
Agreement nor any portion or provision hereof may be changed,
altered, modified, supplemented, discharged, canceled,
terminated, or amended orally or in any manner other than by an
agreement, in writing signed by the parties hereto. No waiver of
any provision of this Pledge Agreement nor consent to any
departure by Pledgor herefrom shall in any event be effective
unless the same shall be in writing and signed by the Agent, and
then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is
given.
16. FURTHER ASSURANCES. The Pledgor agrees at its own
expense to do such further acts and things, and to execute and
deliver such additional conveyances, assignments, financing
statements, agreements and instruments, as the Agent may at any
time reasonably request in connection with the administration or
enforcement of this Agreement or related to the Collateral or any
part thereof or in order better to assure and confirm unto the
Agent its rights, powers and remedies for the benefit of the
Lenders hereunder. The Pledgor hereby consents and agrees that
the issuers of or obligors in respect of the Collateral shall be
entitled to accept the provisions hereof as conclusive evidence
of the right of the Agent, on behalf of the Lenders, to exercise
its rights hereunder with respect to the Collateral,
notwithstanding any other notice or direction to the contrary
heretofore or hereafter given by the Pledgor or any other Person
to any of such issuers or obligors. The Agent may from time to
time, at its option, perform any act which Pledgor agrees
hereunder to perform and which Pledgor shall fail to perform
after being requested in writing to so perform and the Agent may
from time to time take any other action which the Agent
reasonably deems necessary for the maintenance, preservation or
protection of any of the Pledged Collateral or of the security
interest therein.
17. BINDING AGREEMENT; ASSIGNMENT. This Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and
8
K-1-9<PAGE>
inure to the benefit of the parties hereto, and to their
respective successors and assigns, except that Pledgor shall not
assign this Agreement or any interest herein or in the
Collateral, or any part thereof, or otherwise pledge, encumber or
grant any option with respect to the Collateral, or any part
thereof, or any cash or property held by the Agent as Collateral
under this Agreement. All references herein to the Agent shall
include any successor thereof, each Lender and any other obligees
from time to time of the Secured Obligations.
18. SWAP AGREEMENTS. All obligations of the Borrower under
Swap Agreements shall be deemed to be Secured Obligations secured
hereby, and each Lender or affiliate of a Lender party to any
such Swap Agreement shall be deemed to be a Secured Party
hereunder.
19. SEVERABILITY. In case any Lien, security interest or
other right of any Secured Party or any provision hereof shall be
held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien,
security interest or other right granted hereby or provision
hereof.
20. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and all the counterparts taken together
shall be deemed to constitute one and the same instrument.
21. EXPENSES; INDEMNIFICATION. Upon demand, Pledgor will
pay, to the Agent the amount of any and all expenses, including
the reasonable fees and disbursements of its counsel and of any
experts, which the Agent may incur in connection with the
administration of this Pledge Agreement or any instrument
relating hereto, the removal, custody, preservation, use or
operation of, or the sale of, collection from, or other
realization upon, any of the Collateral, the exercise or
enforcement of any of the rights of the Agent and the Secured
Parties with respect to Collateral, the failure by Pledgor to
perform or observe any of the provisions hereof or the
advancement of any funds in connection with actions taken
pursuant to this Agreement. Without limitation of Section 12.9 of
the Credit Agreement or any other indemnification provision in
any Loan Document, the Pledgor hereby covenants and agrees to
pay, indemnify, and hold the Secured Parties harmless from and
against any and all out-of-pocket liabilities, costs, expenses or
disbursements of any kind or nature whatsoever arising in
connection with any claim or litigation by any Person resulting
from the execution, delivery, enforcement, performance and
administration of this Agreement or the Loan Documents, or the
transactions contemplated hereby or thereby, or in any respect
relating to the Collateral or any transaction pursuant to which
the Pledgor has incurred any Obligation (all the foregoing,
collectively, the "Indemnified liabilities"); provided, however,
that the Pledgor shall have no obligation hereunder with respect
to indemnified liabilities resulting from the willful misconduct
or gross negligence of the Agent or any Lender. The agreements
in this subsection shall survive repayment of all Secured
Obligations and termination or expiration of this Agreement.
22. TERMINATION. This Agreement and all obligations of the
Pledgor hereunder shall terminate on irrevocable payment in full
9
K-1-10
<PAGE>
of the Secured Obligations, at which time the Liens and rights
granted to the Agent for the benefit of the Lenders hereunder
shall automatically terminate and no longer be in effect, and the
Collateral shall automatically be released from the Liens created
hereby. Upon such termination of this Agreement, the Agent
shall, at the sole expense of the Pledgor, deliver to the Pledgor
the certificates evidencing the Pledged Stock (and any other
property received as a dividend or distribution or otherwise in
respect of the Pledged Stock then in its custody), together with
any cash then constituting the Collateral, not then sold or
otherwise disposed of in accordance with the provisions hereof
and take such further actions as may be necessary to effect the
same and as shall be reasonably acceptable to the Agent.
23. ADDITIONAL SHARES. If the Pledgor shall acquire or
hold (a) any additional shares of capital stock of any Pledged
Subsidiary or (b) any shares of capital stock of any Subsidiary
not listed on Schedule I hereto which are required to be subject
to a Pledge Agreement pursuant to the terms of Article IV or any
other provision of the Credit Agreement (any such shares
described in clauses (a) or (b) above being referred to herein as
the "Additional Shares"), the Pledgor shall deliver to the Agent
for the benefit of the Lenders (i) a revised Schedule I hereto
reflecting the ownership and pledge of such Additional Shares and
(ii) a Stock Pledge Agreement Supplement in the form of Exhibit A
hereto with respect to such Additional Shares duly completed and
signed by the Pledgor. The Pledgor shall comply with the
requirements of this Section 23 concurrently with the acquisition
of any such Additional Shares in the case of shares described in
clause (a) above, and within the time period specified in Article
IV or elsewhere in the Credit Agreement with respect to shares
described in clause (b) above.
24. REMEDIES CUMULATIVE. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies
of the Agent provided by law or under the Credit Agreement, the
other Loan Documents, or other applicable agreements or
instruments. The making of the Loans to the Borrower pursuant to
the Credit Agreement, and the issuing of Letters of Credit for
the benefit of the Borrower, shall be conclusively presumed to
have been made or extended, respectively, in reliance upon the
Pledgor's grant of the Lien on the Collateral hereunder.
25. NOTICES. Any notice required or permitted hereunder
shall be given, (a) with respect to the Pledgor, at its address
indicated in Section 12.2 of the Credit Agreement and (b) with
respect to the Agent or a Lender, at the Agent's address
indicated in Section 12.2 of the Credit Agreement. All such
notices shall be given and shall be effective as provided in
Section 12.2 of the Credit Agreement.
26. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
10
K-1-11
<PAGE>
(b) THE PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF HAMILTON,
STATE OF TENNESSEE, UNITED STATES OF AMERICA OR THE COUNTY
OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE PLEDGOR EXPRESSLY WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR
TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY,
ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND
THE PLEDGOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUCH SUIT, ACTION OR PROCEEDING.
(c) THE PLEDGOR AGREES THAT SERVICE OF PROCESS MAY BE
MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE
PREPAID) TO THE ADDRESS OF THE PLEDGOR PROVIDED IN SECTION
12.2 OF THE CREDIT AGREEMENT, OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) or (b) HEREOF
SHALL PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE THE PLEDGOR OR ANY OF THE PLEDGOR'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION
THEREWITH, THE PLEDGOR AND THE AGENT ON BEHALF OF THE
LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION OR
PROCEEDING.
11
K-1-12
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this
Stock Pledge Agreement on the day and year first written above.
PLEDGOR:
MILLER INDUSTRIES, INC.
By:________________________________
Name:______________________________
Title:_____________________________
AGENT:
NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as Agent for the
Lenders
By:________________________________
Name:______________________________
Title:_____________________________
STOCK PLEDGE AGREEMENT
SIGNATURE PAGE 1 OF 1
K-1-13
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Name of Issuer Pledgor/ Class of Total Par Number Number of Certificate
Owner(s) Stock Number Value of Shares Shares No(s).
Pledged of Shares Per Issued and Pledged
Authorized Share Outstanding
- ---------------------------------------------------------------------------------------------------------------------------
<S> <S> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
K-1-14
<PAGE>
EXHIBIT A
STOCK PLEDGE AGREEMENT SUPPLEMENT
THIS STOCK PLEDGE AGREEMENT SUPPLEMENT (this "Supplement"),
dated as of ______________, 199__ is made by and between MILLER
INDUSTRIES, INC., a Tennessee corporation (the "Pledgor"), and
NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the
United States, as Agent (the "Agent") for each of the financial
institutions (the "Lenders") now or hereafter party to the Credit
Agreement dated as of January 30, 1998 among such Lenders, the
Agent, Pledgor and Miller Industries Towing Equipment Inc. All
capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned thereto in the Stock Pledge
Agreement (as defined below).
WHEREAS, the Pledgor is a party to that certain Stock
Pledge Agreement dated as of _______________, 19__ by the Pledgor
in favor of the Agent for the benefit of the Lenders (the "Stock
Pledge Agreement"); and
WHEREAS, the Pledgor is required under the terms of the
Credit Agreement and the Stock Pledge Agreement to cause certain
shares of capital stock held by it and listed on Annex A to this
Supplement (the "Additional Shares") to become subject to the
Stock Pledge Agreement; and
WHEREAS, a material part of the consideration given in
connection with and as an inducement to the execution and
delivery of the Credit Agreement by the Agent and the Lenders was
the obligation of the Pledgor to pledge to the Agent for the
benefit of the Lenders the Additional Shares, whether then owned
and not required to be subject to a pledge or subsequently
acquired or created; and
WHEREAS, the Agent and the Lenders have required the
Pledgor to pledge to the Agent for the benefit of the Lenders
all of the Additional Shares in accordance with the terms of the
Credit Agreement and the Stock Pledge Agreement;
NOW, THEREFORE, the Pledgor hereby agrees as follows with
the Agent, for the benefit of the Lenders:
1. The Pledgor hereby reaffirms and acknowledges the
pledge and collateral assignment to, and the grant of security
interest in, the Collateral contained in the Stock Pledge
Agreement and pledges and collaterally assigns to the Agent for
the benefit of the Lenders, and grants to the Agent for the
benefit of the Lenders a first priority lien and security
interest in, the Additional Shares and all of the following:
(a) all cash, securities, dividends, rights, and other
property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of
the Additional Shares, other than cash dividends permitted
to be retained by the Pledgor under Section 9 of the Pledge
Agreement;
(b) all other property hereafter delivered to the
K-1-15<PAGE>
Agent in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or
evidencing such property and all cash, securities, interest,
dividends, rights, and other property at any time and from
time to time declared or distributed in respect of or in
exchange for any or all of the Additional Shares; and
(c) all proceeds of any of the foregoing.
The Pledgor hereby acknowledges, agrees and confirms that, by its
execution of this Supplement, the Additional Shares constitute
"Pledged Stock" under and are subject to the Pledge Agreement.
Each of the representations and warranties with respect to
Pledged Stock contained in the Pledge Agreement is hereby made by
the Pledgor with respect to the Additional Shares. A revised
Schedule I to the Pledge Agreement reflecting the Additional
Shares and all other Pledged Stock, together with stock
certificates representing the Additional Shares with stock powers
duly executed in blank by the Pledgor, have been delivered
herewith to the Agent.
IN WITNESS WHEREOF, the Pledgor has caused this Supplement
to be duly executed by its authorized officer as of the day and
year first above written.
MILLER INDUSTRIES, INC.
By:________________________________
Name:______________________________
Title:_____________________________
Acknowledged and accepted:
NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION,
as Agent for the Lenders
By:________________________________
Name:______________________________
Title:_____________________________
K-1-16
<PAGE>
ANNEX A
Additional Shares
<TABLE>
<CAPTION>
Name of Pledged Class of Stock Total Number of Certificate Numbers
Subsidiary or Issuer -------------- Shares Pledged -------------------
- -------------------- --------------
<S> <C> <C> <C>
</TABLE>
K-1-17<PAGE>
EXHIBIT K-2
Form of Stock Pledge Agreement (Domestic Subsidiaries)
[See Attached]
K-2-1<PAGE>
FORM OF
STOCK PLEDGE AGREEMENT
(US Subsidiaries)
THIS STOCK PLEDGE AGREEMENT (the "Agreement") is made and
entered into as of this ____ day of ________, 19__ by and between
EACH OF THE UNDERSIGNED direct and indirect subsidiaries of
Miller Industries, Inc. ("Miller"), a Tennessee corporation (the
"Pledgors", and each individually a "Pledgor"), and NATIONSBANK
OF TENNESSEE, NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United
States, as Agent (the "Agent") for each of the financial
institutions (the "Lenders" and collectively with the Agent the
"Secured Parties") now or hereafter party to the Credit Agreement
(as defined below). All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned
thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to
Miller and to Miller Industries Towing Equipment Inc., a Delaware
company ("Miller Towing," and together with Miller, the
"Borrower"), certain credit facilities, including a revolving
credit facility with a letter of credit sublimit and a swing line
sublimit, pursuant to the Credit Agreement dated as of January
30, 1998 among the Borrower, the Agent and the Lenders (as from
time to time amended, revised, modified, supplemented, or amended
and restated the "Credit Agreement"); and
WHEREAS, all or some of the Pledgors have entered into the
Credit Agreement or that certain Guaranty Agreement dated as of
___________, 19__ in favor of the Agent for the benefit of the
Lenders; and
WHEREAS, as collateral security for the payment and
performance of the Borrower's Obligations and the Guarantors'
Obligations (as defined in the Guaranty), each Pledgor is willing
to pledge and grant to the Agent for the benefit of the Lenders a
security interest in all of the issued and outstanding shares of
capital stock, whether now in existence or hereafter issued, of
each of its subsidiaries which are Domestic Subsidiaries, and 65%
(or such lesser percentage as such Pledgor shall own) of the
issued and outstanding shares of capital stock or equivalent
indicia of ownership under the law or practice of any foreign
jurisdiction, whether now in existence or hereafter issued, of
each of its subsidiaries which are Direct Foreign Subsidiaries,
all of which are required to be subject to a Pledge Agreement
pursuant to the Credit Agreement (the "Pledged Stock"), including
without limitation the Pledged Stock in such Subsidiaries more
particularly described on Schedule I hereto (such Subsidiaries,
together with all other Subsidiaries whose capital stock may be
required to be subject to a Pledge Agreement from time to time,
are hereinafter referred to collectively as the "Pledged
Subsidiaries"); and
WHEREAS, the Lenders are unwilling to enter into the Loan
Documents unless each Pledgor enters into this Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to
enter into the Loan Documents, to extend credit to the Borrower
K-2-2
<PAGE>
and to make loans and advances and issue letters of credit and in
consideration of the premises and the mutual covenants contained
herein, the parties hereto agree as follows:
1. PLEDGE OF STOCK; OTHER COLLATERAL.
(a) As collateral security for the payment and performance
by the Borrower of its now or hereafter existing Obligations and
by the Pledgors of their now or hereafter existing liabilities
and obligations under the Guaranty (collectively with the
Obligations, the "Secured Obligations"), each Pledgor hereby
pledges and collaterally assigns to the Agent for the benefit of
the Lenders, and grants to the Agent for the benefit of the
Lenders a first priority lien and security interest in, the
Pledged Stock and all of the following:
(i) all cash, securities, dividends, rights and
other property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of
the Pledged Stock, other than cash dividends permitted to be
retained by the Pledgors under Section 9 hereof;
(ii) all other property hereafter delivered to the
Agent in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or
evidencing such property and all cash, securities, interest,
dividends, rights, and other property at any time and from
time to time declared or distributed in respect of or in
exchange for any or all of the Pledged Stock; and
(iii) all proceeds of any of the foregoing.
All such Pledged Stock, certificates, instruments, cash,
securities, interest, dividends, rights and other property
referred to in this Section 1, other than cash dividends issued
in respect of such Pledged Stock that are permitted to be
retained by the Pledgors under Section 9 hereof, are herein
collectively referred to as the "Collateral." All of the Pledged
Stock described on Schedule I in effect from time to time is
currently owned by the respective Pledgors and represented by the
stock certificates listed on Schedule I hereto. Certificates
evidencing all the Pledged Stock on the Closing Date, together
with stock powers duly executed in blank by the Pledgors, have
been delivered to the Agent.
(b) Each Pledgor agrees to deliver all the Collateral to
the Agent at such location or locations as the Agent shall from
time to time designate by written notice pursuant to Section 25
hereof for its custody at all times until termination of this
Agreement, together with such instruments of assignment and
transfer as requested by the Agent.
(c) Each Pledgor agrees to deliver all share certificates,
documents, agreements, financing statements, amendments thereto,
assignments or other writings as the Agent may reasonably request
to carry out the terms of this Agreement or to protect or enforce
the lien and security interest in the Collateral hereunder
granted thereby to the Agent for the benefit of the Lenders and
further agrees to do and cause to be done all things determined
by the Agent to be reasonably necessary to perfect and keep in
2
K-2-3
<PAGE>
full force the Lien in the Collateral hereunder granted thereby
in favor of the Agent for the benefit of the Lenders, including,
but not limited to, the prompt payment of all reasonable out-of-
pocket fees and expenses incurred in connection with any filings
made to perfect or continue the lien and security interest in the
Collateral hereunder granted thereby in favor of the Agent for
the benefit of the Lenders. Each Pledgor agrees to make
appropriate entries upon its books and records (including without
limitation its stock record and transfer books) disclosing the
Lien in the Collateral hereunder granted thereby to the Agent for
the benefit of the Lenders hereunder.
(d) All advances, charges, reasonable costs and reasonable
expenses, including reasonable attorney's fees, incurred or paid
by any Secured Party in exercising any right, power or remedy
conferred by this Agreement, or in the enforcement thereof, shall
become a part of the Secured Obligations and shall be paid to the
Agent for the benefit of the Lenders by the Pledgors immediately
upon demand therefor, with interest thereon until paid in full at
the Default Rate for Base Rate Loans.
2. STATUS OF PLEDGED STOCK. Each Pledgor hereby represents
and warrants to the Agent for the benefit of the Lenders that (i)
all of the shares of Pledged Stock are validly issued and
outstanding, fully paid and nonassessable and constitute all the
authorized, issued and outstanding shares of common stock of each
of the Pledged Subsidiaries of such Pledgor which are Domestic
Subsidiaries and at least 65% (or such lesser percentage as is
owned by such Pledgor and indicated on Schedule I) of the
authorized, issued and outstanding shares of common stock of each
of the Pledged Subsidiaries of such Pledgor which are Direct
Foreign Subsidiaries, (ii) such Pledgor is the registered and
record and beneficial owner of such Pledged Stock, free and clear
of all Liens, charges, equities, encumbrances and restrictions on
pledge or transfer (other than the Liens created under the Loan
Documents and restrictions imposed by applicable federal or state
securities law), (iii) such Pledgor has full corporate power,
legal right and lawful authority to execute this Agreement and to
pledge, assign and transfer such Pledged Stock in the manner and
form hereof, and (iv) the pledge, assignment and delivery of such
Pledged Stock by such Pledgor to the Agent for the benefit of the
Lenders pursuant to this Agreement creates, together with the
delivery of the certificates evidencing such Pledged Stock, which
delivery has heretofore been accomplished, a valid and perfected
first priority security interest in such Pledged Stock in favor
of the Agent for the benefit of the Lenders, securing the payment
of the Secured Obligations. Except as permitted under Sections
9.5 or 9.7 of the Credit Agreement, none of the Pledged Stock
(nor any interest therein or thereto) shall be sold, transferred
or assigned, nor any Lien created therein, without the Agent's
prior written consent. Each Pledgor covenants with the Agent for
the benefit of the Lenders that it shall at all times cause the
Pledged Stock to be represented by the certificates now and
hereafter delivered to the Agent in accordance with Section 1
hereof and that it shall not cause, suffer or permit any of the
Pledged Subsidiaries to issue any capital stock, or securities
convertible into, or exercisable or exchangeable for, capital
stock, at any time during the term of this Agreement other than
to the Pledgors and subject to this Agreement pursuant to Section
23 hereof.
3
K-2-4
<PAGE>
3. PRESERVATION AND PROTECTION OF COLLATERAL.
(a) The Agent shall be under no duty or liability with
respect to the collection, protection or preservation of the
Collateral, or otherwise, other than the obligation to deal with
the Collateral while in its possession in the same manner as the
Agent deals with similar securities or property held as
collateral for loans.
(b) Each Pledgor agrees to pay when due all taxes, charges,
Liens and assessments against the Collateral in which it has an
interest, unless being contested in good faith by appropriate
proceedings diligently conducted and against which adequate
reserves have been established in accordance with GAAP and
evidenced to the satisfaction of the Agent and provided further
that all enforcement proceedings in the nature of levy or
foreclosure are effectively stayed. Upon the failure of the
Pledgors to so pay or contest such taxes, charges, Liens or
assessments, the Agent at its option may pay or contest any of
them (the Agent having the sole right to determine the legality
or validity and the amount necessary to discharge such taxes,
charges, Liens or assessments).
4. DEFAULT. Upon the occurrence and during the
continuance of any Event of Default, the Agent is given full
power and authority, then or at any time thereafter, to sell,
assign and deliver or collect the whole or any part of the
Collateral, or any substitute therefor or any addition thereto,
in one or more sales, with or without any previous demands or
demand of performance or, to the extent permitted by law, notice
or advertisement, in such order as the Agent may elect; and any
such sale may be made either at public or private sale at the
Agent's place of business or elsewhere, either for cash or upon
credit or for future delivery, at such price as the Agent may
reasonably deem fair; and the Agent may be the purchaser of any
or all Collateral so sold and hold the same thereafter in its own
right free from any claim of the Pledgors or right of redemption.
Demands of performance, advertisements and presence of property
and sale and notice of sale are hereby waived to the extent per-
missible by law and the Pledgors acknowledge that the Collateral
is of a type customarily sold on a recognized market. Any sale
hereunder may be conducted by an auctioneer or any officer or
agent of the Agent. Each Pledgor recognizes that the Agent may be
unable to effect a public sale of the Collateral by reason of
certain prohibitions contained in the Securities Act of 1933, as
amended (the "Securities Act"), and applicable law, and may be
otherwise delayed or adversely affected in effecting any sale by
reason of present or future restrictions thereon imposed by
governmental authorities, and that as a consequence of such
prohibitions and restrictions the Agent may be compelled (i) to
resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to
acquire the stock for their own account, for investment and not
with a view to the distribution or resale thereof, or (ii) to
seek regulatory approval of any proposed sale or sales, or
(iii) to limit the amount of Collateral sold to any Person or
group. Each Pledgor agrees and acknowledges that private sales
so made may be at prices and upon terms less favorable to the
Pledgors than if such Collateral was sold either at public sales
or at private sales not subject to other regulatory restrictions,
4
K-2-5
<PAGE>
and that the Agent has no obligation to delay the sale of any of
the Collateral for the period of time necessary to permit the
issuer of such Collateral to register or otherwise qualify the
Pledged Stock, even if such issuer would agree to register or
otherwise qualify for public sale under the Securities Act or
applicable state law. Such Pledgor agrees that private sales made
under the foregoing circumstances will not, for that reason, be
deemed to have been made in a manner which is not commercially
reasonable. Each Pledgor hereby acknowledges that a ready market
may not exist for the Pledged Stock since it is not traded on a
national securities exchange or quoted on an automated quotation
system and agrees and acknowledges that in such event the Pledged
Stock may be sold for an amount less than a pro rata share of the
fair market value of the issuer's assets minus its liabilities.
In addition to the foregoing, the Lenders may exercise such other
rights and remedies as may be available under the Loan Documents,
at law or in equity.
5. PROCEEDS OF SALE. The proceeds of the sale of any of
the Collateral hereunder and all sums received or collected
hereunder from or on account of such Collateral shall be applied
to the payment of expenses incurred or paid by the Agent in
connection with any holding, sale, transfer or delivery of the
Collateral, to the payment of any other costs, charges,
reasonable attorney's fees or expenses mentioned herein, and to
the payment of the Secured Obligations or any part thereof, all
in such order and manner as is provided in Section 10.5 of the
Credit Agreement and otherwise as the Agent may determine and as
permitted by applicable law. The Agent shall, upon satisfaction
in full of all such Secured Obligations, pay any balance to the
Pledgors or otherwise as may be required by applicable law.
6. PRESENTMENTS, DEMANDS AND NOTICES. The Agent shall not
be under any duty or obligation whatsoever to make or give any
presentments, demands for performances, notices of nonper-
formance, protests, notice of protest or notice of dishonor in
connection with any obligations or evidences of indebtedness held
thereby as collateral, or in connection with any obligations or
evidences of indebtedness which constitute in whole or in part
the Secured Obligations secured hereunder.
7. ATTORNEY-IN-FACT. Each Pledgor hereby appoints the
Agent as such Pledgor's attorney-in-fact for the purposes of
carrying out the provisions of this Agreement and taking any
action and executing any instrument which the Agent may deem
necessary or advisable to accomplish the purposes hereof, which
appointment is coupled with an interest and is irrevocable;
provided, that the Agent shall have and may exercise rights under
this power of attorney only upon the occurrence and during the
continuance of an Event of Default. Without limiting the
generality of the foregoing, upon the occurrence and during the
continuance of an Event of Default, the Agent shall have the
right and power to receive, endorse and collect all checks and
other orders for the payment of money made payable to such
Pledgor representing any dividend, interest payment, principal
payment or other distribution payable or distributable in respect
of, or otherwise constituting, the Collateral or any part thereof
and to give full discharge for the same.
5
K-2-6
<PAGE>
8. WAIVER BY PLEDGORS. Each Pledgor waives (to the extent
permitted by applicable law) any right to require the Agent or
any Lender or any other obligee of the Secured Obligations to (a)
proceed against any other Pledgor or any Person, including
without limitation any Guarantor, (b) proceed against or exhaust
any Collateral or other collateral for the Secured Obligations,
or (c) pursue any other remedy in its power; and waives (to the
extent permitted by applicable law) any defense arising by reason
of any disability or other defense of any other Pledgor or any
other Person, including without limitation any Guarantor, or by
reason of the cessation from any cause whatsoever of the
liability of any other Pledgor or any other Person, including
without limitation, any Guarantor. The Agent may at any time
deliver (without representation, recourse or warranty) the
Collateral or any part thereof to any Pledgor who has an interest
therein and the receipt thereof by such Pledgor shall be a
complete and full acquittance for the Collateral so delivered,
and the Agent shall thereafter be discharged from any liability
or responsibility therefor.
9. DIVIDENDS AND VOTING RIGHTS.
(a) All dividends and other distributions with respect to
the Pledged Stock shall be subject to the pledge hereunder,
except for cash dividends permitted to be made under the Credit
Agreement, which may be retained by the Pledgors so long as no
Event of Default shall have occurred and be continuing, and shall
be retained by the Pledgors free from any Lien hereunder. Upon
the occurrence and during the continuance of any Event of
Default, all such cash and other dividends shall be promptly
delivered to the Agent if requested by the Agent (together, if
the Agent shall request, with stock powers or instruments of
assignment duly executed in blank affixed to any stock
certificate or other negotiable document or instrument so
distributed) to be held, released or disposed of by it hereunder
or, at the option of the Agent, to be applied to the Secured
Obligations as they become due.
(b) So long as no Event of Default shall have occurred and
be continuing, the registration of the Collateral in the name of
any Pledgor shall not be changed and the Pledgors shall be
entitled to exercise all voting and other rights and powers
pertaining to the Collateral for all purposes not inconsistent
with the terms hereof.
(c) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Agent, all rights of the
Pledgors to receive and retain dividends upon the Collateral
shall cease and shall thereupon be vested in the Agent for the
benefit of the Lenders.
(d) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Agent, all rights of the
Pledgors to exercise the voting or consensual rights and powers
which it is authorized to exercise with respect to the Collateral
pursuant to subsection (b) above shall cease and the Agent may
thereupon (but shall not be obligated to), at its request, cause
such Collateral to be registered in the name of the Agent or its
nominee or agent for the benefit of the Lenders and exercise such
voting or consensual rights and powers as appertain to ownership
of such Collateral, and to that end each Pledgor hereby appoints
6
K-2-7
<PAGE>
the Agent as its proxy, with full power of substitution, to vote
and exercise all other rights as a shareholder with respect to
the Pledged Stock hereunder upon the occurrence and during the
continuance of any Event of Default, which proxy is coupled with
an interest and is irrevocable prior to termination of this
Agreement as set forth in Section 22 hereof, and each Pledgor
hereby agrees to provide such further proxies as the Agent may
request; provided, however, that the Agent in its discretion may
from time to time refrain from exercising, and shall not be
obligated to exercise, any such voting or consensual rights or
such proxy.
10. POWER OF SALE. Until all the Secured Obligations shall
have irrevocably been paid in full, the power of sale and other
rights, powers and remedies granted to the Agent for the benefit
of the Lenders hereunder shall continue to exist and may be
exercised by the Agent at any time and from time to time
irrespective of the fact that any Secured Obligations or any part
thereof may have become barred by any statute of limitations or
that the liability of any Pledgor may have ceased.
11. OTHER RIGHTS. The rights, powers and remedies given to
the Agent for the benefit of the Lenders by this Agreement shall
be in addition to all rights, powers and remedies given to any
Lenders by virtue of any statute or rule of law. Any forbearance
or failure or delay by the Agent in exercising any right, power
or remedy hereunder shall not be deemed to be a waiver of such
right, power or remedy, and any single or partial exercise of any
right, power or remedy hereunder shall not preclude the further
exercise thereof. Every right, power and remedy of the Lenders
shall continue in full force and effect until such right, power
or remedy is specifically waived by the Required Lenders by an
instrument in writing.
12. ANTI-MARSHALLING PROVISIONS. The right is hereby given
by each Pledgor to the Agent, for the benefit of the Secured
Parties, to make releases (whether in whole or in part) of all or
any part of the Collateral agreeable to the Agent without notice
to, or the consent, approval or agreement of other parties and
interests, including junior lienors, which releases shall not
impair in any manner the validity of or priority of the Liens and
security interests in the remaining Collateral conferred under
such documents, nor release such Pledgor from personal liability
for the Secured Obligations hereby secured. Notwithstanding the
existence of any other security interest in the Collateral held
by the Agent, for the benefit of the Secured Parties, the Agent
shall have the right to determine the order in which any or all
of the Collateral shall be subjected to the remedies provided in
this Agreement. The proceeds realized upon the exercise of the
remedies provided herein shall be applied by the Agent, for the
benefit of the Secured Parties, in the manner provided in Section
10.5 of the Credit Agreement. Each Pledgor hereby waives any and
all right to require the marshalling of assets in connection with
the exercise of any of the remedies permitted by applicable law
or provided herein.
13. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the
Secured Parties, and all obligations of the Pledgors hereunder,
shall be absolute and unconditional irrespective of:
7
K-2-8
<PAGE>
(a) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document or any other
agreement or instrument relating to any of the Secured
Obligations;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Secured
Obligations, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument
relating to any of the Secured Obligations;
(c) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for all or any of
the Secured Obligations; or
(d) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, the
Pledgors in respect of the Secured Obligations or of this
Agreement.
14. DEFINITIONS. All terms used herein unless otherwise
defined in the Credit Agreement shall be defined in accordance
with the appropriate definitions appearing in the Uniform
Commercial Code as in effect in Georgia, and such definitions are
hereby incorporated herein by reference and made a part hereof.
15. ENTIRE AGREEMENT; WAIVERS. This Agreement, together
with the Credit Agreement, the Guaranty Agreement and other Loan
Documents, constitutes and expresses the entire understanding
between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings,
inducements, commitments or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof
control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof. Neither this
Agreement nor any portion or provision hereof may be changed,
altered, modified, supplemented, discharged, canceled,
terminated, or amended orally or in any manner other than by an
agreement, in writing signed by the parties hereto. No waiver of
any provision of this Pledge Agreement nor consent to any
departure by any Pledgor herefrom shall in any event be effective
unless the same shall be in writing and signed by the Agent, and
then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is
given.
16. FURTHER ASSURANCES. Each Pledgor agrees at its own
expense to do such further acts and things, and to execute and
deliver such additional conveyances, assignments, financing
statements, agreements and instruments, as the Agent may at any
time reasonably request in connection with the administration or
enforcement of this Agreement or related to the Collateral or any
part thereof or in order better to assure and confirm unto the
Agent its rights, powers and remedies for the benefit of the
Lenders hereunder. Each Pledgor hereby consents and agrees that
the issuers of or obligors in respect of the Collateral shall be
entitled to accept the provisions hereof as conclusive evidence
of the right of the Agent, on behalf of the Lenders, to exercise
its rights hereunder with respect to the Collateral,
8
K-2-9
<PAGE>
notwithstanding any other notice or direction to the contrary
heretofore or hereafter given by the Pledgors or any other Person
to any of such issuers or obligors. The Agent may from time to
time, at its option, perform any act which any Pledgor agrees
hereunder to perform and which such Pledgor shall fail to perform
after being requested in writing to so perform and the Agent may
from time to time take any other action which the Agent
reasonably deems necessary for the maintenance, preservation or
protection of any of the Pledged Collateral or of the security
interest therein.
17. BINDING AGREEMENT; ASSIGNMENT. This Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and
inure to the benefit of the parties hereto, and to their
respective successors and assigns, except that no Pledgor shall
assign this Agreement or any interest herein or in the
Collateral, or any part thereof, or otherwise pledge, encumber or
grant any option with respect to the Collateral, or any part
thereof, or any cash or property held by the Agent as Collateral
under this Agreement. All references herein to the Agent shall
include any successor thereof, each Lender and any other obligees
from time to time of the Secured Obligations.
18. SWAP AGREEMENTS. All obligations of the Borrower under
Swap Agreements shall be deemed to be Secured Obligations secured
hereby, and each Lender or affiliate of a Lender party to any
such Swap Agreement shall be deemed to be a Secured Party
hereunder.
19. SEVERABILITY. In case any Lien, security interest or
other right of any Secured Party or any provision hereof shall be
held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien,
security interest or other right granted hereby or provision
hereof.
20. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and all the counterparts taken together
shall be deemed to constitute one and the same instrument.
21. EXPENSES; INDEMNIFICATION. Upon demand, each Pledgor
will pay to the Agent the amount of any and all expenses,
including the reasonable fees and disbursements of its counsel
and of any experts, which the Agent may incur in connection with
the administration of this Pledge Agreement or any instrument
relating hereto, the removal, custody, preservation, use or
operation of, or the sale of, collection from, or other
realization upon, any of the Collateral, the exercise or
enforcement of any of the rights of the Agent and the Secured
Parties with respect to Collateral, the failure by such Pledgor
to perform or observe any of the provisions hereof or the
advancement of any funds in connection with actions taken
pursuant to this Agreement. Without limitation of Section 12.9
of the Credit Agreement or any other indemnification provision in
any Loan Document, each Pledgor hereby jointly and severally
covenants and agrees to pay, indemnify, and hold the Secured
Parties harmless from and against any and all out-of-pocket
liabilities, costs, expenses or disbursements of any kind or
nature whatsoever arising in connection with any claim or
litigation by any Person resulting from the execution, delivery,
9
K-2-10
<PAGE>
enforcement, performance and administration of this Agreement or
the Loan Documents, or the transactions contemplated hereby or
thereby, or in any respect relating to the Collateral or any
transaction pursuant to which the Pledgor has incurred any
obligation (all the foregoing, collectively, the "indemnified
liabilities"); provided, however, that the Pledgor shall have no
obligation hereunder with respect to indemnified liabilities
resulting from the willful misconduct or gross negligence of the
Agent or any Lender. The agreements in this subsection shall
survive repayment of all Secured Obligations or termination or
expiration of this Agreement.
22. TERMINATION. This Agreement and all obligations of the
Pledgors hereunder shall terminate on the irrevocable payment in
full of the Secured Obligations, at which time the Liens and
rights granted to the Agent for the benefit of the Lenders
hereunder shall automatically terminate and no longer be in
effect, and the Collateral shall automatically be released from
the Liens created hereby. Upon such termination of this
Agreement, the Agent shall, at the sole expense of the Pledgors,
deliver to the Pledgors the certificates evidencing the Pledged
Stock (and any other property received as a dividend or
distribution or otherwise in respect of the Pledged Stock then in
its custody), together with any cash then constituting the
Collateral, not then sold or otherwise disposed of in accordance
with the provisions hereof and take such further actions as may
be necessary to effect the same and as shall be reasonably
acceptable to the Agent.
23. ADDITIONAL SHARES. If any Pledgor shall acquire or
hold (a) any additional shares of capital stock of any Pledged
Subsidiary or (b) any shares of capital stock of any Subsidiary
not listed on Schedule I hereto which are required to be subject
to a Pledge Agreement pursuant to the terms of Article IV or any
other provision of the Credit Agreement (any such shares
described in clauses (a) or (b) above being referred to herein as
the "Additional Shares"), such Pledgor shall deliver to the Agent
for the benefit of the Lenders (i) a revised Schedule I hereto
reflecting the ownership and pledge of such Additional Shares and
(ii) a Stock Pledge Agreement Supplement in the form of Exhibit A
hereto with respect to such Additional Shares duly completed and
signed by such Pledgor. Each Pledgor shall comply with the
requirements of this Section 23 concurrently with the acquisition
of any such Additional Shares in the case of shares described in
clause (a) above, and within the time period specified in Article
IV or elsewhere in the Credit Agreement with respect to shares
described in clause (b) above.
24. REMEDIES CUMULATIVE. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies
of the Agent provided by law or under the Credit Agreement, the
other Loan Documents, or other applicable agreements or
instruments. The making of the Loans to the Borrower pursuant to
the Credit Agreement, and the issuing of Letters of Credit for
the benefit of the Borrower, shall be conclusively presumed to
have been made or extended, respectively, in reliance upon the
Pledgor's grant of the Lien on the Collateral hereunder.
25. NOTICES. Any notice required or permitted hereunder
shall be given, (a) with respect to any Pledgor, care of the
10
K-2-11
<PAGE>
Borrower at its address indicated in Section 12.2 of the Credit
Agreement and (b) with respect to the Agent or a Lender, at the
Agent's address indicated in Section 12.2 of the Credit
Agreement. All such notices shall be given and shall be
effective as provided in Section 12.2 of the Credit Agreement.
26. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
(b) EACH PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF HAMILTON,
STATE OF TENNESSEE, UNITED STATES OF AMERICA OR THE COUNTY
OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH PLEDGOR EXPRESSLY WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR
TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY,
ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND
EACH PLEDGOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH PLEDGOR AGREES THAT SERVICE OF PROCESS MAY BE
MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE
PREPAID) TO THE ADDRESS OF THE BORROWER PROVIDED IN SECTION
12.2 OF THE CREDIT AGREEMENT, OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) or (b) HEREOF
SHALL PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE EACH PLEDGOR OR ANY OF SUCH PLEDGOR'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION
THEREWITH, EACH PLEDGOR AND THE AGENT ON BEHALF OF THE
LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION OR
PROCEEDING.
[Signature pages follow.]
11
K-2-12
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this
Stock Pledge Agreement on the day and year first written above.
PLEDGORS:
[LIST PLEDGORS]
By:______________________________________________
Name:___________________________________________
Title:____________________________________________
STOCK PLEDGE AGREEMENT
SIGNATURE PAGE 1 OF 2
K-2-13
<PAGE>
AGENT:
NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION, as Agent for the Lenders
By:_____________________________________
Name:___________________________________
Title:__________________________________
STOCK PLEDGE AGREEMENT
SIGNATURE PAGE 2 OF 2
K-2-14<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Name of Issuer Pledgor/ Class of Total Number Par Number Number of Certificate
Owner(s) Stock of Shares Value of Shares Shares No(s).
Pledged Authorized Per Issued and Pledged
Share Outstanding
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
K-2-15
<PAGE>
EXHIBIT A
STOCK PLEDGE AGREEMENT SUPPLEMENT
THIS STOCK PLEDGE AGREEMENT SUPPLEMENT (this "Supplement"),
dated as of ______________, 199__ is made by and between
___________________________, _____________________________ (the
"Pledgor"), and NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, a
national banking association organized and existing under the
laws of the United States, as Agent (the "Agent") for each of the
financial institutions (the "Lenders") now or hereafter party to
the Credit Agreement dated as of January 30, 1998 among such
Lenders, the Agent, Miller Industries, Inc. and Miller Industries
Towing Equipment Inc. All capitalized terms used but not
otherwise defined herein shall have the respective meanings
assigned thereto in the Stock Pledge Agreement (as defined
below).
WHEREAS, the Pledgor is a party to that certain Stock
Pledge Agreement dated as of ______________, 19__ by the Pledgor
and certain affiliates of the Pledgor in favor of the Agent for
the benefit of the Lenders (the "Stock Pledge Agreement"); and
WHEREAS, the Pledgor is required under the terms of the
Credit Agreement and the Stock Pledge Agreement to cause certain
shares of capital stock held by it and listed on Annex A to this
Supplement (the "Additional Shares") to become subject to the
Stock Pledge Agreement; and
WHEREAS, a material part of the consideration given in
connection with and as an inducement to the execution and
delivery of the Credit Agreement by the Secured Parties was the
obligation of the Pledgor to pledge to the Agent for the benefit
of the Lenders the Additional Shares, whether then owned and not
required to be subject to a pledge or subsequently acquired or
created; and
WHEREAS, the Secured Parties have required the Pledgor to
pledge to the Agent for the benefit of the Lenders all of the
Additional Shares in accordance with the terms of the Credit
Agreement and the Stock Pledge Agreement;
NOW, THEREFORE, the Pledgor hereby agrees as follows with
the Agent, for the benefit of the Lenders:
1. The Pledgor hereby reaffirms and acknowledges the
pledge and collateral assignment to, and the grant of security
interest in, the Collateral contained in the Stock Pledge
Agreement and pledges and collaterally assigns to the Agent for
the benefit of the Lenders, and grants to the Agent for the
benefit of the Lenders a first priority lien and security
interest in, the Additional Shares and all of the following:
(a) all cash, securities, dividends, rights, and other
property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of
the Additional Shares, other than cash dividends permitted
to be retained by the Pledgor under Section 9 of the Stock
Pledge Agreement;
K-2-16<PAGE>
(b) all other property hereafter delivered to the
Agent in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or
evidencing such property and all cash, securities, interest,
dividends, rights, and other property at any time and from
time to time declared or distributed in respect of or in
exchange for any or all of the Additional Shares; and
(c) all proceeds of any of the foregoing.
The Pledgor hereby acknowledges, agrees and confirms that, by its
execution of this Supplement, the Additional Shares constitute
"Pledged Stock" under and are subject to the Stock Pledge
Agreement. Each of the representations and warranties with
respect to Pledged Stock contained in the Stock Pledge Agreement
is hereby made by the Pledgor with respect to the Additional
Shares. A revised Schedule I to the Stock Pledge Agreement
reflecting the Additional Shares and all other Pledged Stock,
together with stock certificates representing the Additional
Shares with stock powers duly executed in blank by the Pledgor,
have been delivered herewith to the Agent.
IN WITNESS WHEREOF, the Pledgor has caused this Supplement
to be duly executed by its authorized officer as of the day and
year first above written.
__________________________________
By:________________________________
Name:______________________________
Title:_____________________________
Acknowledged and accepted:
NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION, as Agent for the Lenders
By:____________________________________
Name:__________________________________
Title:___________________________________
K-2-17
<PAGE>
ANNEX A
Additional Shares
<TABLE>
<CAPTION>
Name of Pledged Class of Stock Total Number of Certificate Numbers
Subsidiary or Issuer -------------- Shares Pledged -------------------
- -------------------- --------------
<S> <S> <C> <C>
</TABLE>
K-2-18
<PAGE>
EXHIBIT L
Form of Opinion of Borrowers' and Guarantors' Counsel
L-1-1
<PAGE>
EXHIBIT M
Compliance Certificate
NationsBank of Tennessee,
National Association, as Agent
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 386-9436
Reference is hereby made to the Credit Agreement dated as of January
30, 1998 (the "Agreement") among MILLER INDUSTRIES, INC., a Tennessee
corporation ("Miller"), MILLER INDUSTRIES TOWING EQUIPMENT INC., a
Delaware corporation ("Miller Towing," and together with Miller, the
"Borrowers"), the Lenders (as defined in the Agreement) and NationsBank
of Tennessee, National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings therefor set forth in the Agreement. The
undersigned, a duly authorized and acting Authorized Representative,
hereby certifies to you as of _____________, 19___ (the "Determination
Date") as follows:
1. Calculations
A. Compliance with Section 9.1(a): Consolidated Tangible
Shareholders' Equity
1. Issued and outstanding share capital $________
2. Additional paid-in capital plus retained income
(retained deficit to be expressed as a negative) $________
3. Foreign currency translation (to be expressed as
a negative, if applicable)
$__________
4. Non-recurring noncash restructuring charges
since ____________, 19__ $________
5. Treasury stock $________
6. Intangibles, including goodwill ($__________)
and patents and trademarks ($__________) $_______
10. Consolidated Tangible Shareholders' Equity
(A.1 + A.2 + A.3 + A.4 - A.5 - A.6) $_______
M-1<PAGE>
Required:
(i) Requirement for prior fiscal quarter
($93,000,000 if prior fiscal quarter is
fiscal quarter in which Closing Date occurs); plus $_______
(ii) 50% of Consolidated Net Income since first
day of current fiscal quarter; plus $_______
(iii) 100% of the Net Proceeds of any Equity Offering $_______
Total: $_______
B. Compliance with Section 9.1(b): Consolidated Funded
Senior Indebtedness to Consolidated EBITDA
1. Consolidated Funded Senior Indebtedness $________
2. Consolidated EBITDA for such period $________
a. Consolidated Net Income $__________
b. Consolidated Interest Expense $__________
c. Taxes on income $__________
d. Amortization $__________
e. Depreciation $__________
f. Non-recurring noncash
restructuring charges $__________
g. Net gains on the sale, conversion
or other disposition of capital
assets $__________
h. Net gains on the acquisition,
retirement, sale or other
disposition of capital stock and
other securities $__________
i. Net gains on the collection of
proceeds of life insurance
policies $__________
j. Write-ups of any assets other than
permitted by FAS 16 $__________
k. Other extraordinary net gains
or credits $__________
TOTAL ([a + b +c + d + e + f] -
[g + h + i + j + k] $________
3. Ratio of B.2 to B.1 ____ to ____
Required: Line 3 must not be more than 3.00
to 1.00
M-2<PAGE>
C. Compliance with Section 9.1(c): Consolidated Funded
Total Indebtedness to Consolidated EBITDA
1. Consolidated Funded Total Indebtedness $________
2. Consolidated EBITDA for such period (see B.2) $________
3. Ratio of C.2 to C.1 ____ to ___
Required: Line 3 must not be more than 3.50
to 1.00
D. Compliance with Section 9.1(d): Consolidated Fixed Charge Ratio
1. Consolidated EBITDA for such period (see B.2) $_______
2. Lease, rental and other expenses in connection
with operating leases for such period $_______
3. Capital Expenditures for such period $_______
4. Taxes paid or accrued on income for such period $_______
5. Consolidated Fixed Charges for such period:
(i) Consolidated Interest
Expense, plus $___________
(ii) Lease, rental and other expenses
in connection with operating
leases, plus $___________
(iii) Current maturities of Consolidated
Funded Total Indebtedness, plus $___________
(iv) Current maturities of Capital
Leases, plus $___________
(v) Payments in respect of Acquisitions
representing any deferred portion
of consideration, plus $___________
(vi) Payments in respect of Off Balance
Sheet Liabilities $___________
TOTAL (i + ii + iii + iv + v + vi) $_______
6. D.1 + D.2 $_______
7. D.3 + D.4 $_______
8. D.6 - D.7 $_______
9. Ratio of C.8 to C.5 ___ to ___
Required: Not less than --
M-3<PAGE>
Closing Date through and including the
day immediately prior to Fiscal Year
End 1999 1.00 to 1.00
Fiscal Year End 1999 through and including
the day immediately prior to Fiscal Year 2000 1.20 to 1.00
Fiscal Year End 2000 and thereafter 1.25 to 1.00
E. Compliance with Section 9.2: Acquisitions
1. Acquisitions during fiscal quarter, including Cost of
Acquisition
a. Name of Subsidiary: ______________ $________
b. Name of Subsidiary: ______________ $________
c. Name of Subsidiary: ______________ $________
d. Name of Subsidiary: ______________ $________
e. Name of Subsidiary: ______________ $________
f. Name of Subsidiary: ______________ $________
g. Name of Subsidiary: ______________ $________
h. Name of Subsidiary: ______________ $________
2. Total Cost of Acquisition during fiscal quarter $________
3. Total Cost of Acquisition during prior fiscal
quarters during such Fiscal year $________
4. Total Cost of Acquisition during Fiscal Year to date $________
Required: Cost of Acquisition not greater than
$10,000,000 per acquisition or
$50,000,000 in any Fiscal Year
F. Compliance with Section 9.4(d): Purchase Money Indebtedness
and Capital Lease Obligations
1. Purchase money and Capital Lease obligations $________
Required: Not more than $5,000,000 outstanding
at any time
G. Compliance with Section 9.4(e): Guarantees of Trade
Account Indebtedness
M-4<PAGE>
1. Guarantees of trade account indebtedness $________
Required: Not more than $2,000,000 outstanding
at any time
H. Compliance with Section 9.4(g): Additional Indebtedness
5. Total additional Indebtedness $________
Required: Not more than $5,000,000 outstanding
at any time
2. No Default
A. Since __________ (the date of the last similar
certification), (a) the Borrowers have not defaulted in the keeping,
observance, performance or fulfillment of its obligations pursuant
to any of the Loan Documents; and (b) no Default or Event of Default
specified in Article X of the Agreement has occurred and is
continuing.
B. If a Default or Event of Default has occurred since
__________ (the date of the last similar certification), the
Borrowers propose to take the following action with respect to such
Default or Event of Default: ________________________________________
_____________________________________________________________________
_____________________________________________________________________
__________________________________.
(Note, if no Default or Event of Default has occurred, insert "Not
Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with Section 8.1 of the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, 19___.
By:_________________________________________
Authorized Representative
Name:_______________________________________
Title:______________________________________
M-5<PAGE>
SCHEDULE 1.1(a)
Existing Debt<PAGE>
SCHEDULE 1.1(b)
Existing Letters of Credit<PAGE>
SCHEDULE 7.4
Subsidiaries<PAGE>
SCHEDULE 7.6
Existing Indebtedness<PAGE>
SCHEDULE 7.7
Title to Properties<PAGE>
SCHEDULE 7.10
Litigation<PAGE>
SCHEDULE 7.19
Employment Matters<PAGE>
SCHEDULE 8.5
Insurance<PAGE>
NEGATIVE PLEDGE AGREEMENT
THIS AGREEMENT is entered into by and among MILLER
INDUSTRIES, INC., a Tennessee corporation with its principal
offices in Ooltewah, Tennessee ("Miller"), MILLER INDUSTRIES
TOWING EQUIPMENT INC., a Delaware corporation with its principal
offices in Ooltewah, Tennessee ("Miller Towing," and together
with Miller, the "Borrowers"), and EACH OF THE UNDERSIGNED
SUBSIDIARIES OF MILLER (collectively the "Guarantors"), and
NATIONSBANK OF TENNESSEE, N.A., a national banking association
with its offices in Chattanooga, Tennessee ("NationsBank")
(hereinafter referred to as "Agent"), as agent for each of the
Lenders (the "Lenders") as a party to the Credit Agreement (as
defined below). All capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in
the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Borrowers, Agent and Lenders have entered into that
certain Credit Agreement dated of even date herewith (the "Credit
Agreement") and the Guarantors and the Agent have entered into
that certain Guaranty Agreement dated of even date herewith (the
"Guaranty Agreement"); and
WHEREAS, pursuant to the Credit Agreement, the Lenders will
advance credit pursuant to the terms and conditions thereof; and
WHEREAS, as one of the terms of the Credit Agreement,
Borrowers and Guarantors have agreed to execute a Negative Pledge
Agreement whereby Borrowers and Guarantors agree that they will
not sell, lease, transfer or otherwise dispose of, or grant a
lien on, any of their accounts receivable, inventory, equipment
and other assets and any capital stock of the Guarantors, whether
now existing or acquired in the future, without the prior written
consent of Required Lenders until the Revolving Credit
Termination Date, except as specifically permitted by the Credit
Agreement; and
WHEREAS, in consideration of the mutual covenants and
conditions set forth herein and in consideration of the
extensions of credit by the Lenders to or for the benefit of the
Borrowers and Guarantors contemplated under the Credit Agreement
and the other Loan Documents executed in relation thereto, the
legal sufficiency of which are irrevocably acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. NEGATIVE PLEDGE. Borrowers and Guarantors agree that
they will not sell, lease, transfer or otherwise dispose of, or
incur or permit to exist any Lien, charge or encumbrance of any
nature with respect to any of their accounts receivable,
inventory, equipment and other assets and any capital stock of
the Guarantors, whether now existing or acquired in the future
without the prior written consent of the Required Lenders, except
as permitted by the Credit Agreement.
2. CERTAIN MORTGAGES PERMITTED. Nothing contained in this
Negative Pledge Agreement shall be construed to prohibit any
mortgages and other encumbrances on real estate of Champion
Carrier Corporation or any successor thereof located in
Hermitage, Pennsylvania, granted by Champion Carrier Corporation
or its successor to secure the indebtedness incurred in
purchasing its Hermitage, Pennsylvania facility.
<PAGE>
3. EFFECT OF DEFAULT. A breach of the terms and
conditions of this Negative Pledge Agreement shall constitute an
"Event of Default" under SECTION 10.1 of the Credit Agreement, as
the term "Event of Default" is defined in the Credit Agreement
and the Agent and Lenders shall be entitled to all rights and
remedies as set forth in the Credit Agreement.
IN WITNESS WHEREOF, the parties intending to be legally
bound have executed this Negative Pledge Agreement as of this
30th day of January, 1998.
BORROWERS:
MILLER INDUSTRIES, INC.
By: /s/ Jeffrey Badgley
Name: Jeffrey Badgley
Title: President
MILLER INDUSTRIES TOWING
EQUIPMENT INC.
By: /s/ Adam Dunayer
Name: Adam Dunayer
Title: Vice President
2<PAGE>
GUARANTORS:
A-2 WRECKER SERVICE, INC.
A-EXCELLENCE TOWING CO.
ALL AMERICAN TOWING SERVICES, INC.
ALLIED TOWING AND RECOVERY, INC.
APACO, INC.
APPLE TOWING CO., INC.
A TO Z ENTERPRISES, INC.
B&B ASSOCIATED INDUSTRIES, INC.
BEAR TRANSPORTATION, INC.
BERT'S TOWING RECOVERY CORPORATION
BOB BOLIN SERVICES, INC.
BOULEVARD & TRUMBULL TOWING, INC.
BREWER'S, INC.
C&L TOWING SERVICES, INC.
CASSON INVESTMENT CORPORATION
CEDAR BLUFF 24 HOUR TOWING, INC.
CENTURY HOLDINGS, INC.
CHAMPION CARRIER CORPORATION
CHEVRON, INC.
CHEVRON SOUTH/SOUTHERN WRECKER
LEASING, INC.
CHICAGO METRO SERVICES, INC.
CLEVELAND VEHICLE DETENTION CENTER,
INC.
COMPETITION WHEELIFT, INC.
D.A. HANELINE, INC.
DICK'S TOWING & ROAD SERVICE, INC.
DOLLAR ENTERPRISES, INC.
E.B.T., INC.
EXPORT ENTERPRISES, INC.
GEORGIA EXPORT ENTERPRISES, INC.
GOLDEN WEST TOWING EQUIPMENT INC.
GOOD MECHANIC AUTO CO. OF
RICHFIELD, INC.
GREG'S TOWING, INC.
H&H TOWING ENTERPRISES, INC.
HALL'S TOWING SERVICE, INC.
HENDRICKSON TOWING, INC.
H.M.R. ENTERPRISES, INC.
INTERSTATE TOWING & RECOVERY, INC.
3<PAGE>
JENKINS WRECKER SERVICE, INC.
JENNINGS ENTERPRISES, INC.
KAUFF'S, INC.
KING AUTOMOTIVE & INDUSTRIAL
EQUIPMENT, INC.
LAZER TOW SERVICES, INC.
LEWIS WRECKER SERVICE, INC.
LINCOLN TOWING ENTERPRISES, INC.
MERL'S TOWING SERVICE, INC.
MID-AMERICA WRECKER & EQUIPMENT
SALES, INC. OF COLORADO
MIKE'S WRECKER SERVICE, INC.
MILLER FINANCIAL SERVICES GROUP, INC.
MILLER/GREENEVILLE, INC.
MILLER INDUSTRIES DISTRIBUTING, INC.
MILLER INDUSTRIES INTERNATIONAL, INC.
MOORE'S SERVICE & TOWING, INC.
MOORE'S TOWING SERVICE, INC.
MURPHY'S TOWING, INC.
OFFICIAL TOWING, INC.
O'HARE TRUCK SERVICE, INC.
PETE'S A TOWING, INC.
PIPES ENTERPRISES, INC.
PURPOSE, INC.
RAR ENTERPRISES, INC.
RANDY'S HIGH COUNTRY TOWING, INC.
RAY HARRIS, INC.
ROAD BUTLER, INC.
ROAD ONE, INC.
ROAD ONE INSURANCE SERVICES, INC.
ROAD ONE SERVICE, INC.
RONNY MILLER WRECKER SERVICE INC.
SANDY'S AUTO & TRUCK SERVICE, INC.
SOUTHERN WRECKER CENTER, INC.
SOUTHERN WRECKER SALES, INC.
SPEED'S AUTOMOTIVE, INC.
SPEED'S RENTALS, INC.
SROGA'S AUTOMOTIVE SERVICES, INC.
SUBURBAN WRECKER SERVICE, INC.
TEAM TOWING AND RECOVERY, INC.
TED'S OF FAYVILLE, INC.
TEXAS TOWING CORPORATION
THOMPSON'S WRECKER SERVICE, INC.
TREASURE COAST TOWING, INC.
4<PAGE>
TRUCK SALES & SALVAGE CO., INC.
VRCHOTA CORPORATION
VULCAN EQUIPMENT COMPANY, INC.
VULCAN INTERNATIONAL (DELAWARE), INC.
WALKER TOWING, INC.
WES'S SERVICE INCORPORATED
ZEBRA TOWING, INC.
By: /s/ Frank Madonia
Name: Frank Madonia
Title: Attorney-in-Face
5<PAGE>
AGENT:
NATIONSBANK OF TENNESSEE, N.A., as Agent
By: /s/ Lawrence M. Richey
Name: Lawrence M. Richey
Title: Senior Vice President
6<PAGE>
STATE OF TENNESSEE
COUNTY OF HAMILTON
BEFORE ME personally appeared _______________________________,
with whom I am personally acquainted (or proved to me on the basis of
satisfactory evidence), and who, upon oath, acknowledged himself to be
____________ President of ________________________, the within-
named corporation, and that he as such officer, executed the
foregoing instrument for the purpose therein contained, by
signing the name of the corporation by himself as such officer.
WITNESS my hand and seal, at office, on this ________ day
of__________, 1998.
_____________________________________
Notary Public
My commission expires:_______________
STATE OF TENNESSEE
COUNTY OF HAMILTON
BEFORE ME personally appeared ___________________, with whom
I am personally acquainted (or proved to me on the basis of
satisfactory evidence), and who, upon oath, acknowledged himself
to be ___________ of NationsBank of Tennessee, N.A., the within-
named corporation, and that he as such officer, executed the
foregoing instrument for the purpose therein contained, by
signing the name of the corporation by himself as such officer.
WITNESS my hand and seal, at office, on this ________ day
of__________, 1998.
_____________________________________
Notary Public
My commission expires:_______________
7
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement" or this
"Guaranty"), dated as of January 30, 1998, is made by EACH OF THE
UNDERSIGNED (each a "Guarantor" and collectively the
"Guarantors") to NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION,
a national banking association organized and existing under the
laws of the United States, as Agent (the "Agent") for each of the
lenders (the "Lenders" and collectively with the Agent the
"Secured Parties") now or hereafter party to the Credit Agreement
(as defined below). All capitalized terms used but not otherwise
defined herein shall have the meaning ascribed to such terms in
the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to
Miller Industries, Inc., a Tennessee corporation ("Miller"), and
Miller Industries Towing Equipment Inc., a Delaware corporation
("Miller Towing," and together with Miller, the "Borrowers"),
certain credit facilities, including a revolving credit facility
with a letter of credit sublimit and a swing line sublimit,
pursuant to the Credit Agreement dated as of January 30, 1998
among the Borrowers, the Agent and the Lenders (as from time to
time amended, revised, modified, supplemented or amended and
restated, the "Credit Agreement"); and
WHEREAS, each Guarantor is, directly or indirectly, a wholly
owned Subsidiary of one of the Borrowers; and
WHEREAS, as a condition to entering into the Credit
Agreement and making and continuing to make any loans or advances
and issuing and continuing to issue letters of credit thereunder,
each Guarantor is required to guarantee to the Secured Parties
payment of the Borrower's Obligations in accordance with the
terms of this Agreement; and
WHEREAS, each Guarantor will materially benefit from the
loans and advances to be made, and the letters of credit to be
issued, under the Credit Agreement, and each Guarantor is willing
to enter into this Guaranty to provide an inducement for the
Secured Parties to continue to make loans and advances, and to
issue letters of credit, under the Credit Agreement; and
WHEREAS, the Secured Parties are unwilling to enter into the
Loan Documents unless the Guarantors enter into this Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to
enter into the Loan Documents and to make loans and advances and
issue Letters of Credit, and in consideration of the premises and
mutual covenants contained herein, each Guarantor hereby agrees
as follows:
1. GUARANTY. Each Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably
guarantees to the Secured Parties the payment and performance in
full of the Borrower's Liabilities (as defined below). For all
purposes of this Guaranty Agreement, "Borrower's Liabilities"
means: (a) each Borrower's prompt payment in full, when due or
declared due and at all such times, of all Obligations and all
other amounts pursuant to the terms of the Credit Agreement, the
Notes, and all other Loan Documents executed in connection with
the Credit Agreement and all Rate Hedging Obligations heretofore,
now or at any time or times hereafter owing, arising, due or
<PAGE>
payable from the Borrowers to the Lenders, including without
limitation principal, interest, premium or fee (including, but
not limited to, loan fees and attorneys' fees and expenses); and
(b) each Borrower's prompt, full and faithful performance,
observance and discharge of each and every agreement,
undertaking, covenant and provision to be performed, observed or
discharged by either Borrower under the Credit Agreement and all
other Loan Documents executed in connection therewith and all
Swap Agreements. The Guarantors' obligations to the Secured
Parties under this Guaranty Agreement are hereinafter
collectively referred to as the "Guarantors' Obligations";
provided, however, that the liability of each Guarantor
individually with respect to the Guarantor's Obligations shall be
limited to an aggregate amount equal to the largest amount that
would not render its obligations hereunder subject to avoidance
under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any applicable state law.
Each Guarantor agrees that it is jointly and severally,
directly and primarily liable for the Borrower's Liabilities
hereunder.
2. PAYMENT. If either Borrower shall default in payment
or performance of any Borrower's Liabilities, whether principal,
interest, premium, fee (including, but not limited to, loan fees
and attorneys' fees and expenses), or otherwise, when and as the
same shall become due, whether according to the terms of the
Credit Agreement, by acceleration, or otherwise, or upon the
occurrence of any Event of Default under the Credit Agreement
that has not been cured or waived, then any or all of the
Guarantors will, upon demand thereof by the Agent or its
successors or assigns AS OF THE DATE OF SUCH DEMAND, fully pay to
the Agent, for the benefit of the Secured Parties, subject to any
restriction set forth in SECTION 1 hereof, an amount equal to all
Guarantors' Obligations then due and owing.
3. UNCONDITIONAL OBLIGATIONS. This is a guaranty of
payment and not of collection. The Guarantors' Obligations under
this Guaranty Agreement shall be joint and several, absolute and
unconditional irrespective of the validity, legality or
enforceability of the Credit Agreement, the Notes or any other
Loan Document or any other guaranty of the Borrower's
Liabilities, and shall not be affected by any action taken under
the Credit Agreement, the Notes or any other Loan Document, any
other guaranty of the Borrower's Liabilities, or any other
agreement between the Secured Parties and the Borrowers or any
other Person, in the exercise of any right or power therein
conferred, or by any failure or omission to enforce any right
conferred thereby, or by any waiver of any covenant or condition
therein provided, or by any acceleration of the maturity of any
of the Borrower's Liabilities, or by the release or other
disposal of any security for any of the Borrower's Liabilities,
or by the dissolution of either of the Borrowers or the
combination or consolidation of either of the Borrowers into or
with another entity or any transfer or disposition of any assets
of either of the Borrowers or by any extension or renewal of the
Credit Agreement, any of the Notes or any other Loan Document, in
whole or in part, or by any modification, alteration, amendment
or addition of or to the Credit Agreement, any of the Notes or
any other Loan Document, any other guaranty of the Borrower's
Liabilities, or any other agreement between the Secured Parties
and the Borrowers or any other Person, or by any other cir-
cumstance whatsoever (with or without notice to or knowledge of
any Guarantor) which may or might in any manner or to any extent
2<PAGE>
vary the risks of such Guarantor, or might otherwise constitute a
legal or equitable discharge of a surety or a guarantor; it being
the purpose and intent of the parties hereto that this Guaranty
Agreement and the Guarantors' Obligations hereunder shall be
absolute and unconditional under any and all circumstances and
shall not be discharged except by payment as herein provided.
4. CURRENCY AND FUNDS OF PAYMENT. Each Guarantor hereby
guarantees that the Guarantors' Obligations will be paid in
lawful currency of the United States of America and in
immediately available funds, regardless of any law, regulation or
decree now or hereafter in effect that might in any manner affect
the Borrower's Liabilities, or the rights of the Secured Parties
with respect thereto as against the Borrowers or either of them,
or cause or permit to be invoked any alteration in the time,
amount or manner of payment by the Borrowers of any or all of the
Borrower's Liabilities.
5. SUITS. Each Guarantor from time to time shall pay to
the Agent for the benefit of the Secured Parties, on demand, at
the Agent's place of business set forth in the Credit Agreement
or such other address as the Agent shall give notice of to such
Guarantor, the Guarantors' Obligations as they become or are
declared due, and in the event such payment is not made
forthwith, the Agent or the Lenders or any of them may proceed to
suit against any one or more or all of the Guarantors. At the
Agent's election, one or more and successive or concurrent suits
may be brought hereon by the Agent against any one or more or all
of the Guarantors, whether or not suit has been commenced against
the Borrowers, any other guarantor of the Borrower's Liabilities,
or any other Person and whether or not the Secured Parties have
taken or failed to take any other action to collect all or any
portion of the Borrower's Liabilities or have taken or failed to
take any actions against any collateral securing payment or
performance of all or any portion of the Borrower's Liabilities.
6. SET-OFF AND WAIVER; SUBORDINATION. Each Guarantor
waives any right to assert against the Secured Parties as a
defense, counterclaim, set-off or cross claim, any defense (legal
or equitable) or other claim which such Guarantor may now or at
any time hereafter have against the Borrowers or the Secured
Parties without waiving any additional defenses, set-offs,
counterclaims or other claims otherwise available to such
Guarantor. If at any time hereafter the Secured Party employs
counsel for advice or other representation to enforce the
Guarantors' Obligations, then, in any of the foregoing events,
all of the reasonable attorneys' fees arising from such services
and all other reasonable expenses, costs and charges in any way
or respect arising in connection therewith or relating thereto
shall be paid by such Guarantor to the Agent, for the benefit of
the Secured Parties, on demand.
Until the Borrower's Liabilities are paid in full and the
Agent and the Secured Parties are under no further obligation to
lend or extend funds or credit which would constitute Borrower's
Liabilities, each Guarantor hereby unconditionally subordinates
all present and future debts, liabilities or obligations of the
Borrowers or either of them or any other Guarantor, as the case
may be, to such Guarantor to the Borrower's Liabilities, and all
amounts due under such debts, liabilities, or obligations shall,
upon the occurrence and during the continuance of an Event of
Default, be collected and paid over forthwith to the Agent, for
the benefit of the Secured Parties, on account of the Borrower's
3<PAGE>
Liabilities and, pending such payment, shall be held by each
Guarantor as agent and bailee of the Agent and the Secured
Parties separate and apart from all other funds, property and
accounts of such Guarantor. Each Guarantor shall execute such
further documents in favor of the Agent, for the benefit of the
Secured Parties to further evidence and support the purpose of
this subordination.
7. WAIVER; SUBROGATION.
(a) Each Guarantor hereby waives notice of the
following events or occurrences: (i) the Agent's acceptance of this
Guaranty Agreement; (ii) the Lenders' heretofore, now or from time to
time hereafter making Loans and issuing Letters of Credit and otherwise
loaning monies or giving or extending credit to or for the benefit of
the Borrowers or either of them, whether pursuant to the Credit Agreement
or the Notes or any other Loan Document or any amendments, modifications,
or supplements thereto, or replacements or extensions thereof; (iii) the
Secured Parties or either of the Borrowers heretofore, now or at any time
hereafter, obtaining, amending, substituting for, releasing, waiving or
modifying the Credit Agreement, the Notes or any other Loan Documents;
(iv) presentment, demand, default, non-payment, partial payment and
protest; (v) any Secured Party heretofore, now or at any time hereafter
granting to the Borrowers or either of them (or any other party liable to
the Lenders on account of the Borrower's Liabilities) or to any certain
Guarantor any indulgence or extensions of time of payment of the Borrower's
Liabilities or Guarantors' Obligations, respectively; and (vi) any
Secured Party heretofore, now or at any time hereafter accepting from
either Borrower, any other Guarantor, any other guarantor of the Borrower's
Liabilities or any other Person, any partial payment or payments on account
of the Borrower's Liabilities or any collateral securing the payment
thereof or the Agent settling, subordinating, compromising, discharging
or releasing the same. Each Guarantor agrees that each Secured Party
may heretofore, now or at any time hereafter do any or all of the
foregoing in such manner, upon such terms and at such times as each
Secured Party, in its sole and absolute discretion, deems advisable,
without in any way or respect impairing, affecting, reducing or
releasing such Guarantor from the Guarantors' Obligations, and each
Guarantor hereby consents to each and all of the foregoing events or
occurrences.
(b) Each Guarantor hereby agrees that payment or
performance by such Guarantor of the Guarantors' Obligations
under this Guaranty Agreement may be enforced by the Agent on
behalf of the Lenders upon demand by the Agent to such Guarantor
without the Agent being required, such Guarantor expressly
waiving any right it may have to require the Agent, to
(i) prosecute collection or seek to enforce or resort to any
remedies against the Borrowers or either of them or any other
Guarantor or any other guarantor of the Borrower's Liabilities,
or (ii) seek to enforce or resort to any remedies with respect to
any security interests, Liens or encumbrances granted to the
Agent by either Borrower, any other Guarantor or any other Person
on account of the Borrower's Liabilities or any guaranty thereof,
IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH
4
<PAGE>
GUARANTOR THAT DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE
BY THE AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE AGENT,
EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS
CONTINUING UNDER THE CREDIT AGREEMENT. Neither the Agent nor any
Lender shall have any obligation to protect, secure or insure any
of the foregoing security interests, Liens or encumbrances on the
properties or interests in properties subject thereto. The
Guarantors' Obligations shall in no way be impaired, affected,
reduced, or released by reason of any Secured Party's failure or
delay to do or take any of the acts, actions or things described
in this Guaranty including, without limiting the generality of
the foregoing, those acts, actions and things described in this
SECTION 7.
(c) Each Guarantor further agrees with respect to this
Guaranty that such Guarantor shall have no right of subrogation,
reimbursement or indemnity, nor any right of recourse to security
for the Borrower's Liabilities until the irrevocable payment in
full of the Borrower's Liabilities.
8. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement
shall be effective as of the date hereof and shall continue in
full force and effect until all Borrower's Liabilities have been
irrevocably paid in full and the Agent and Secured Parties shall
be under no further obligation to extend credit to the Borrowers
or either of them which would constitute Borrower's Liabilities.
This Guaranty Agreement shall be binding upon and inure to the
benefit of each Guarantor, the Agent and the Lenders and their
respective successors and assigns. Notwithstanding the
foregoing, no Guarantor may, without the prior written consent of
the Agent, assign any rights, powers, duties or obligations
hereunder. Any claim or claims that the Secured Parties may at
any time hereafter have against a Guarantor under this Guaranty
Agreement may be asserted by any Secured Party by written notice
directed to such Guarantor.
9. REPRESENTATIONS AND WARRANTIES. Each Guarantor
warrants and represents to the Agent for the benefit of the
Lenders that it is duly authorized to execute, deliver and
perform this Guaranty Agreement, that this Guaranty Agreement is
legal, valid, binding and enforceable against such Guarantor in
accordance with its terms except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and
by general equitable principles; and that such Guarantor's
execution, delivery and performance of this Guaranty Agreement do
not violate or constitute a breach of its certificate of
incorporation or other documents of corporate governance or any
agreement to which such Guarantor is a party, or any applicable
laws, orders, regulations, decrees or awards of any applicable
governmental authority or arbitral body. Each Guarantor is
solvent after giving effect to the transactions contemplated by
this Guaranty and the other Loan Documents to which it is a
party.
10. EXPENSES. Each Guarantor agrees to be liable for the
payment of all reasonable fees and expenses, including attorney's
fees, incurred by the Agent in connection with the enforcement of
this Guaranty Agreement.
11. REINSTATEMENT. Each Guarantor agrees that this
Guaranty Agreement shall continue to be effective or be
reinstated, as the case may be, at any time payment received by
5<PAGE>
the Agent under the Credit Agreement or this Guaranty Agreement
is rescinded or must be restored for any reason.
12. ATTORNEY-IN-FACT. Each Guarantor hereby appoints the
Agent as such Guarantor's attorney-in-fact for the purposes of
carrying out the provisions of this Agreement and taking any
action and executing any instrument which the Agent may deem
necessary or advisable to accomplish the purposes hereof, which
appointment is coupled with an interest and is irrevocable;
provided, that the Agent shall have and may exercise rights under
this power of attorney only upon the occurrence and during the
continuance of an Event of Default.
13. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the
Secured Parties, and all obligations of each Guarantor hereunder,
shall be absolute and unconditional irrespective of:
(1) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document or any other
agreement or instrument relating to any of the Guarantor's
Obligations;
(2) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guarantor's
Obligations, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument
relating to any of the Guarantor's Obligations;
(3) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for all or any of
the Guarantor's Obligations; or
(4) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, each
Guarantor in respect of the Guarantor's Obligations or of
this Agreement.
14. RELIANCE. Each Guarantor represents and warrants to
the Agent, for the benefit of the Secured Parties, that: (a)
such Guarantor has adequate means to obtain from Borrowers, on a
continuing basis, information concerning the Borrowers and the
Borrowers' financial condition and affairs and has full and
complete access to Borrowers' books and records; (b) such
Guarantor is not relying on any Secured Party, its or their
employees, agents or other representatives, to provide such
information, now or in the future; (c) such Guarantor is
executing this Guaranty Agreement freely and deliberately, and
understands the obligations and financial risk undertaken by
providing this Guaranty; (d) such Guarantor has relied solely on
the Guarantor's own independent investigation, appraisal and
analysis of the Borrowers and the Borrowers' financial condition
and affairs in deciding to provide this Guaranty and is fully
aware of the same; and (e) such Guarantor has not depended or
relied on any Secured Party, its or their employees, agents or
representatives, for any information whatsoever concerning the
Borrowers or the Borrowers' financial condition and affairs or
other matters material to such Guarantor's decision to provide
this Guaranty or for any counseling, guidance, or special
consideration or any promise therefor with respect to such
decision. Each Guarantor agrees that neither the Agent nor any
Lender has any duty or responsibility whatsoever, now or in the
6<PAGE>
future, to provide to such Guarantor any information concerning
the Borrowers or the Borrowers' financial condition and affairs,
other than as expressly provided herein, and that, if such
Guarantor receives any such information from the Agent or any
Lender, its or their employees, agents or other representatives,
such Guarantor will independently verify the information and will
not rely on the Agent or any Lender, its or their employees,
agents or other representatives, with respect to such
information.
15. DEFINITIONS. All terms used herein shall be defined in
accordance with the appropriate definitions appearing in the
Uniform Commercial Code as in effect in Georgia, and such
definitions are hereby incorporated herein by reference and made
a part hereof.
16. ENTIRE AGREEMENT. This Guaranty Agreement, together
with the Credit Agreement and other Loan Documents, constitutes
and expresses the entire understanding between the parties hereto
with respect to the subject matter hereof, and supersedes all
prior agreements and understandings, inducements, commitments or
conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any
of the terms hereof. Neither this Guaranty Agreement nor any
portion or provision hereof may be changed, altered, modified,
supplemented, discharged, canceled, terminated, or amended orally
or in any manner other than by an agreement, in writing signed by
the parties hereto.
17. BINDING AGREEMENT; ASSIGNMENT. This Guaranty
Agreement, and the terms, covenants and conditions hereof, shall
be binding upon and inure to the benefit of the parties hereto,
and to their respective successors and assigns, except that no
Guarantor shall be permitted to assign this Agreement or any
interest herein. All references herein to the Agent shall
include any successor thereof, each Lender and any other obligees
from time to time of the Guarantor's Obligations.
18. SWAP AGREEMENTS. All obligations of the Borrowers
under Swap Agreements shall be deemed to be Borrower's
Liabilities secured hereby, and each Lender or affiliate of a
Lender party to any such Swap Agreement shall be deemed to be a
Secured Party hereunder.
19. REPAYMENT OR RECOVERY. If claim is ever made upon the
Agent or the Secured Parties for repayment or recovery of any
amount or amounts received from Persons other than a Guarantor in
payment or on account of any of the Borrower's Liabilities and
the Agent or the Secured Parties repay all or part of said amount
by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of
its property, or (b) any settlement or compromise of any such
claim effected by the Agent or the Secured Parties with any such
claimant (including the original obligor), then and in such event
each Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon it,
notwithstanding any revocation hereof or the cancellation of any
Note or other instrument evidencing any Borrower's Liabilities or
any security therefor, and each Guarantor shall be and remain
liable to the Agent and the Secured Parties for the amount so
repaid or recovered to the same extent as if such amount had
never originally been received by the Agent or the Secured
Parties.
7<PAGE>
20. SET-OFF. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an
Event of Default, each Guarantor agrees that the Agent for the
benefit of the Secured Parties shall be authorized, to the
fullest extent permitted by applicable law, to set off and apply
all deposits or deposit accounts, of any kind (other than
deposits identified as being held for third parties), now or
hereafter pledged, mortgaged, transferred or assigned to the
Agent or otherwise in the possession or control of the Agent
(other than for safekeeping) for any purpose for the account or
benefit of such Guarantor and including any balance of any
deposit account or of any credit of such Guarantor with the Agent
or the Secured Parties, whether now existing or hereafter
established, with or without prior notice (but with notice with
reasonable promptness after such set-off) to such of the
liabilities of such Guarantor to the Agent and the Secured
Parties under the Credit Agreement and the other Loan Documents
then past due and in such amounts as they may elect, and whether
or not the collateral or the responsibility of other Persons
primarily, secondarily or otherwise liable may be deemed
adequate. For the purposes of this SECTION 20, all remittances
and property shall be deemed to be in the possession of the Agent
as soon as the same may be put in transit to it by mail or
carrier or by other bailee.
21. EXPENSES; INDEMNIFICATION. Each Guarantor will upon
demand pay to the Agent or any Secured Party, as applicable the
amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts
and agents, which the Agent or such Secured Party may reasonably
incur in connection with enforcement of this Guaranty or the
failure by a Guarantor to perform or observe any of the
provisions hereof. Without limitation of SECTION 12.9 of the
Credit Agreement or any other indemnification provision in any
Loan Document, each Guarantor hereby covenants and agrees to pay,
indemnify, and hold the Secured Parties harmless from and against
any and all liabilities, costs, expenses or disbursements of any
kind or nature whatsoever arising in connection with any claim or
litigation by any Person resulting from the execution, delivery,
enforcement, performance and administration of this Guaranty
Agreement or the Loan Documents, or the transactions contemplated
hereby or thereby, or in any respect relating to the Collateral
or any transaction pursuant to which such Guarantor has incurred
any Guarantor's Obligations (all the foregoing, collectively, the
"indemnified liabilities"); provided, however, that such
Guarantor shall have no obligation hereunder with respect to
indemnified liabilities resulting from the willful misconduct or
gross negligence of the Agent or any Lender. If and to the
extent that the obligations of the Guarantors under this SECTION
21 are unenforceable for any reason, each Guarantor hereby agrees
to make the maximum contribution to the payment and satisfaction
of such obligations which is permissible under applicable law.
The agreements in this subsection shall survive repayment of all
Secured Obligations and termination or expiration of this
Guaranty Agreement.
22. REMEDIES CUMULATIVE. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies
of the Agent provided by law or under the Credit Agreement, the
other Loan Documents, or other applicable agreements or
instruments. The making of the Loans to the Borrowers pursuant
to the Credit Agreement and the extension of credit to the
8<PAGE>
Borrowers pursuant to the Credit Agreement shall be conclusively
presumed to have been made or extended, respectively, in reliance
upon the Guarantor's guaranty of the Borrower's Liabilities
pursuant to the terms hereof.
23. NOTICES. Any notice required or permitted hereunder
shall be given, (a) with respect to each Guarantor, at the
address of the Borrowers indicated in SECTION 12.2 of the Credit
Agreement and (b) with respect to the Agent or a Lender, at the
Agent's address indicated in SECTION 12.2 of the Credit
Agreement. All such notices shall be given and shall be
effective as provided in SECTION 12.2 of the Credit Agreement.
24. GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
(b) EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF HAMILTON,
STATE OF TENNESSEE, UNITED STATES OF AMERICA OR THE COUNTY
OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY HAVE
NOW OR HEREAFTER TO THE LAYING OF THE VENUE OR TO THE
JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
(c) EACH GUARANTOR AGREES THAT SERVICE OF PROCESS MAY
BE MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE
PREPAID) AND IN ACCORDANCE WITH SECTION 12.2 OF THE CREDIT
AGREEMENT, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR
UNDER THE APPLICABLE LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) OR (b) HEREOF
SHALL PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE COURTS OF
ANY JURISDICTION WHERE THE GUARANTOR OR ANY OF THE
GUARANTOR'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH
THE FOREGOING, EACH GUARANTOR HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY AND EACH GUARANTOR HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO
TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
9<PAGE>
25. Severability. In case any Lien, security interest or
other right of any Secured Party or any provision hereof shall be
held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien,
security interest or other right granted hereby or provision
hereof.
26. Counterparts. This Guaranty Agreement may be executed
in any number of counterparts and all the counterparts taken
together shall be deemed to constitute one and the same
instrument.
[Signature Page Follows.]
10<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this
Guaranty Agreement on the day and year first written above.
GUARANTORS:
A-2 WRECKER SERVICE, INC.
A-EXCELLENCE TOWING CO.
ALL AMERICAN TOWING SERVICES, INC.
ALLIED TOWING AND RECOVERY, INC.
APACO, INC.
APPLE TOWING CO., INC.
A TO Z ENTERPRISES, INC.
B&B ASSOCIATED INDUSTRIES, INC.
BEAR TRANSPORTATION, INC.
BERT'S TOWING RECOVERY CORPORATION
BOB BOLIN SERVICES, INC.
BOULEVARD & TRUMBULL TOWING, INC.
BREWER'S, INC.
C&L TOWING SERVICES, INC.
CASSON INVESTMENT CORPORATION
CEDAR BLUFF 24 HOUR TOWING, INC.
CENTURY HOLDINGS, INC.
CHAMPION CARRIER CORPORATION
CHEVRON, INC.
CHEVRON SOUTH/SOUTHERN WRECKER
LEASING, INC.
CHICAGO METRO SERVICES, INC.
CLEVELAND VEHICLE DETENTION CENTER,
INC.
COMPETITION WHEELIFT, INC.
D.A. HANELINE, INC.
DICK'S TOWING & ROAD SERVICE, INC.
DOLLAR ENTERPRISES, INC.
E.B.T., INC.
EXPORT ENTERPRISES, INC.
GEORGIA EXPORT ENTERPRISES, INC.
GOLDEN WEST TOWING EQUIPMENT INC.
GOOD MECHANIC AUTO CO. OF
RICHFIELD, INC.
GREG'S TOWING, INC.
H&H TOWING ENTERPRISES, INC.
HALL'S TOWING SERVICE, INC.
HENDRICKSON TOWING, INC.
H.M.R. ENTERPRISES, INC.
INTERSTATE TOWING & RECOVERY, INC.
JENKINS WRECKER SERVICE, INC.
JENNINGS ENTERPRISES, INC.
KAUFF'S, INC.
KING AUTOMOTIVE & INDUSTRIAL
EQUIPMENT, INC.
LAZER TOW SERVICES, INC.
LEWIS WRECKER SERVICE, INC.
LINCOLN TOWING ENTERPRISES, INC.
MERL'S TOWING SERVICE, INC.
MID-AMERICA WRECKER & EQUIPMENT
SALES, INC. OF COLORADO
MIKE'S WRECKER SERVICE, INC.
MILLER FINANCIAL SERVICES GROUP,
INC.
GUARANTY AGREEMENT
SIGNATURE PAGE 1 OF 4
<PAGE>
MILLER/GREENEVILLE, INC.
MILLER INDUSTRIES DISTRIBUTING, INC.
MILLER INDUSTRIES INTERNATIONAL, INC.
MOORE'S SERVICE & TOWING, INC.
MOORE'S TOWING SERVICE, INC.
MURPHY'S TOWING, INC.
OFFICIAL TOWING, INC.
O'HARE TRUCK SERVICE, INC.
PETE'S A TOWING, INC.
PIPES ENTERPRISES, INC.
PURPOSE, INC.
RAR ENTERPRISES, INC.
RANDY'S HIGH COUNTRY TOWING, INC.
RAY HARRIS, INC.
ROAD BUTLER, INC.
ROAD ONE, INC.
ROAD ONE INSURANCE SERVICES, INC.
ROAD ONE SERVICE, INC.
RONNY MILLER WRECKER SERVICE INC.
SANDY'S AUTO & TRUCK SERVICE, INC.
SOUTHERN WRECKER CENTER, INC.
SOUTHERN WRECKER SALES, INC.
SPEED'S AUTOMOTIVE, INC.
SPEED'S RENTALS, INC.
SROGA'S AUTOMOTIVE SERVICES, INC.
SUBURBAN WRECKER SERVICE, INC.
TEAM TOWING AND RECOVERY, INC.
TED'S OF FAYVILLE, INC.
TEXAS TOWING CORPORATION
THOMPSON'S WRECKER SERVICE, INC.
TREASURE COAST TOWING, INC.
TRUCK SALES & SALVAGE CO., INC.
VRCHOTA CORPORATION
VULCAN EQUIPMENT COMPANY, INC.
VULCAN INTERNATIONAL (DELAWARE), INC.
WALKER TOWING, INC.
WES'S SERVICE INCORPORATED
ZEBRA TOWING, INC.
By: /s/ Frank Madonia
Name: Frank Madonia
Title: Attorney-in-Fact
GUARANTY AGREEMENT
SIGNATURE PAGE 2 OF 4<PAGE>
AGENT:
NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as Agent for the
Lenders
By: /s/ Gregg E. Merriman
Name: Gregg E. Merriman
Title: Commercial Banking Officer
GUARANTY AGREEMENT
SIGNATURE PAGE 3 OF 4
STOCK PLEDGE AGREEMENT
(Miller Industries, Inc.)
THIS STOCK PLEDGE AGREEMENT (the "Agreement") is made and
entered into as of this 30th day of January, 1998 by and between
MILLER INDUSTRIES, INC., a Tennessee corporation (the "Pledgor"),
and NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the
United States, as Agent (the "Agent") for each of the financial
institutions (the "Lenders" and collectively with the Agent the
"Secured Parties") now or hereafter party to the Credit Agreement
(as defined below). All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned
thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to the
Pledgor and to Miller Industries Towing Equipment Inc. ("Miller
Towing," and together with the Pledgor, the "Borrower") certain
credit facilities, including a revolving credit facility with a
letter of credit sublimit and a swing line sublimit, pursuant to
the Credit Agreement dated as of January 30, 1998 among the
Borrower, the Agent and the Lenders (as from time to time
amended, revised, modified, supplemented, or amended and restated
the "Credit Agreement"); and
WHEREAS, as collateral security for the payment and
performance of the Borrower's Obligations, the Pledgor is willing
to pledge and grant to the Agent for the benefit of the Lenders a
security interest in all of the issued and outstanding shares of
capital stock, whether now in existence or hereafter issued, of
each of its Domestic Subsidiaries, and 65% (or such lesser
percentage as Pledgor shall own) of the issued and outstanding
shares of capital stock or equivalent indicia of ownership under
the law or practice of any foreign jurisdiction, whether now in
existence or hereafter issued, of each of its Direct Foreign
Subsidiaries, all of which are required to be subject to a Pledge
Agreement pursuant to the Credit Agreement (the "Pledged Stock"),
including without limitation the Pledged Stock in such
Subsidiaries more particularly described on SCHEDULE I hereto
(such Subsidiaries, together with all other Subsidiaries whose
capital stock may be required to be subject to a Pledge Agreement
from time to time, are hereinafter referred to collectively as
the "Pledged Subsidiaries"); and
WHEREAS, the Secured Parties are unwilling to enter into the
Loan Documents unless the Pledgor enters into this Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to
enter into the Loan Documents, to extend credit to the Borrower
and to make loans and advances and issue letters of credit and in
consideration of the premises and the mutual covenants contained
herein, the parties hereto agree as follows:
1. PLEDGE OF STOCK; OTHER COLLATERAL.
(a) As collateral security for the payment and performance
by the Borrower of its now or hereafter existing Obligations (the
"Secured Obligations"), the Pledgor hereby pledges and
collaterally assigns to the Agent for the benefit of the Lenders,
and grants to the Agent for the benefit of the Lenders a first
<PAGE>
priority lien and security interest in, the Pledged Stock and all
of the following:
(i) all cash, securities, dividends, rights and
other property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of
the Pledged Stock, other than cash dividends permitted to be
retained by the Pledgor under SECTION 9 hereof;
(ii) all other property hereafter delivered to the
Agent in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or
evidencing such property and all cash, securities, interest,
dividends, rights, and other property at any time and from
time to time declared or distributed in respect of or in
exchange for any or all of the Pledged Stock; and
(iii) all proceeds of any of the foregoing.
All such Pledged Stock, certificates, instruments, cash,
securities, interest, dividends, rights and other property
referred to in this SECTION 1, other than cash dividends issued
in respect of such Pledged Stock that are permitted to be
retained by the Pledgor under SECTION 9 hereof, are herein
collectively referred to as the "Collateral." All of the Pledged
Stock described on SCHEDULE I in effect from time to time is
currently owned by the Pledgor and represented by the stock
certificates listed on SCHEDULE I hereto. Certificates evidencing
all the Pledged Stock on the Closing Date, together with stock
powers duly executed in blank by the Pledgor, have been delivered
to the Agent.
(b) The Pledgor agrees to deliver all the Collateral to the
Agent at such location or locations as the Agent shall from time
to time designate by written notice pursuant to SECTION 25 hereof
for its custody at all times until termination of this Agreement,
together with such instruments of assignment and transfer as
requested by the Agent.
(c) The Pledgor agrees to deliver all share certificates,
documents, agreements, financing statements, amendments thereto,
assignments or other writings as the Agent may reasonably request
to carry out the terms of this Agreement or to protect or enforce
the lien and security interest in the Collateral hereunder
granted thereby to the Agent for the benefit of the Lenders and
further agrees to do and cause to be done all things determined
by the Agent to be reasonably necessary to perfect and keep in
full force the Lien in the Collateral hereunder granted thereby
in favor of the Agent for the benefit of the Lenders, including,
but not limited to, the prompt payment of all reasonable out-of-
pocket fees and expenses incurred in connection with any filings
made to perfect or continue the lien and security interest in the
Collateral hereunder granted thereby in favor of the Agent for
the benefit of the Lenders. The Pledgor agrees to make
appropriate entries upon its books and records (including without
limitation its stock record and transfer books) disclosing the
Lien in the Collateral hereunder granted thereby to the Agent for
the benefit of the Lenders hereunder.
(d) All advances, charges, reasonable costs and reasonable
expenses, including reasonable attorneys' fees, incurred or paid
by the Agent or any Lender in exercising any right, power or
remedy conferred by this Agreement, or in the enforcement
2<PAGE>
thereof, shall become a part of the Secured Obligations and shall
be paid to the Agent for the benefit of the Lenders by the
Pledgor immediately upon demand therefor, with interest thereon
until paid in full at the Default Rate for Base Rate Loans.
2. STATUS OF PLEDGED STOCK. The Pledgor hereby represents
and warrants to the Agent for the benefit of the Lenders that (i)
all of the shares of Pledged Stock are validly issued and
outstanding, fully paid and nonassessable and constitute all the
authorized, issued and outstanding shares of common stock of each
of the Pledged Subsidiaries which are Domestic Subsidiaries and
65% (or such lesser percentage as Pledgor owns, as indicated on
SCHEDULE I) of the authorized, issued and outstanding shares of
common stock of each of the Pledged Subsidiaries which are Direct
Foreign Subsidiaries, (ii) the Pledgor is the registered and
record and beneficial owner of such Pledged Stock, free and clear
of all Liens, charges, equities, encumbrances and restrictions on
pledge or transfer (other than the Liens created under the Loan
Documents and applicable restrictions imposed by federal and
state securities law), (iii) the Pledgor has full corporate
power, legal right and lawful authority to execute this Agreement
and to pledge, assign and transfer such Pledged Stock in the
manner and form hereof, and (iv) the pledge, assignment and
delivery of such Pledged Stock by the Pledgor to the Agent for
the benefit of the Lenders pursuant to this Agreement creates,
together with the delivery of the certificates evidencing such
Pledged Stock, which delivery has heretofore been accomplished, a
valid and perfected first priority security interest in such
Pledged Stock in favor of the Agent for the benefit of the
Lenders, securing the payment of the Secured Obligations. Except
as permitted under SECTIONs 9.5 or 9.7 of the Credit Agreement,
none of the Pledged Stock (nor any interest therein or thereto)
shall be sold, transferred or assigned, nor any Lien created
therein, without the Agent's prior written consent. The Pledgor
covenants with the Agent for the benefit of the Lenders that it
shall at all times cause the Pledged Stock to be represented by
the certificates now and hereafter delivered to the Agent in
accordance with SECTION 1 hereof and that it shall not cause,
suffer or permit any of the Pledged Subsidiaries to issue any
capital stock, or securities convertible into, or exercisable or
exchangeable for, capital stock, at any time during the term of
this Agreement other than to the Pledgor and subject to this
Agreement pursuant to SECTION 23 hereof.
3. PRESERVATION AND PROTECTION OF COLLATERAL.
(a) The Agent shall be under no duty or liability with
respect to the collection, protection or preservation of the
Collateral, or otherwise, other than the obligation to deal with
the Collateral while in its possession in the same manner as the
Agent deals with similar securities or property held as
collateral for loans.
(b) The Pledgor agrees to pay when due all taxes, charges,
Liens and assessments against the Collateral, unless being
contested in good faith by appropriate proceedings diligently
conducted and against which adequate reserves have been
established in accordance with GAAP and evidenced to the
satisfaction of the Agent and provided further that all
enforcement proceedings in the nature of levy or foreclosure are
effectively stayed. Upon the failure of the Pledgor to so pay or
contest such taxes, charges, Liens or assessments, the Agent at
its option may pay or contest any of them (the Agent having the
sole right to determine the legality or validity and the amount
3<PAGE>
necessary to discharge such taxes, charges, Liens or
assessments).
4. DEFAULT. Upon the occurrence and during the
continuance of any Event of Default, the Agent is given full
power and authority, then or at any time thereafter, to sell,
assign and deliver or collect the whole or any part of the
Collateral, or any substitute therefor or any addition thereto,
in one or more sales, with or without any previous demands or
demand of performance or, to the extent permitted by law, notice
or advertisement, in such order as the Agent may elect; and any
such sale may be made either at public or private sale at the
Agent's place of business or elsewhere, either for cash or upon
credit or for future delivery, at such price as the Agent may
reasonably deem fair; and the Agent may be the purchaser of any
or all Collateral so sold and hold the same thereafter in its own
right free from any claim of the Pledgor or right of redemption.
Demands of performance, advertisements and presence of property
and sale and notice of sale are hereby waived to the extent per-
missible by law and the Pledgor acknowledges that the Collateral
is of a type customarily sold on a recognized market. Any sale
hereunder may be conducted by an auctioneer or any officer or
agent of the Agent. The Pledgor recognizes that the Agent may be
unable to effect a public sale of the Collateral by reason of
certain prohibitions contained in the Securities Act of 1933, as
amended (the "Securities Act"), and applicable law, and may be
otherwise delayed or adversely affected in effecting any sale by
reason of present or future restrictions thereon imposed by
governmental authorities, and that as a consequence of such
prohibitions and restrictions the Agent may be compelled (i) to
resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to
acquire the stock for their own account, for investment and not
with a view to the distribution or resale thereof, or (ii) to
seek regulatory approval of any proposed sale or sales, or
(iii) to limit the amount of Collateral sold to any Person or
group. The Pledgor agrees and acknowledges that private sales so
made may be at prices and upon terms less favorable to the
Pledgor than if such Collateral was sold either at public sales
or at private sales not subject to other regulatory restrictions,
and that the Agent has no obligation to delay the sale of any of
the Collateral for the period of time necessary to permit the
issuer of such Collateral to register or otherwise qualify the
Pledged Stock, even if such issuer would agree to register or
otherwise qualify for public sale under the Securities Act or
applicable state law. The Pledgor agrees that private sales made
under the foregoing circumstances will not, for that reason, be
deemed to have been made in a manner which is not commercially
reasonable. The Pledgor hereby acknowledges that a ready market
may not exist for the Pledged Stock since it is not traded on a
national securities exchange or quoted on an automated quotation
system and agrees and acknowledges that in such event the Pledged
Stock may be sold for an amount less than a pro rata share of the
fair market value of the issuer's assets minus its liabilities.
In addition to the foregoing, the Lenders may exercise such other
rights and remedies as may be available under the Loan Documents,
at law or in equity.
5. PROCEEDS OF SALE. The proceeds of the sale of any of
the Collateral hereunder and all sums received or collected from
or on account of such Collateral shall be applied to the payment
of expenses incurred or paid by the Agent in connection with any
holding, sale, transfer or delivery of the Collateral, to the
4<PAGE>
payment of any other costs, charges, reasonable attorneys' fees
or expenses mentioned herein, and to the payment of the Secured
Obligations or any part thereof, all in such order and manner as
is provided in SECTION 10.5 of the Credit Agreement and otherwise
as the Agent may determine and as permitted by applicable law.
The Agent shall, upon satisfaction in full of all such Secured
Obligations, pay any balance to the Pledgor or otherwise as may
be required by applicable law.
6. PRESENTMENTS, DEMANDS AND NOTICES. The Agent shall not
be under any duty or obligation whatsoever to make or give any
presentments, demands for performances, notices of nonper-
formance, protests, notice of protest or notice of dishonor in
connection with any obligations or evidences of indebtedness held
thereby as collateral, or in connection with any obligations or
evidences of indebtedness which constitute in whole or in part
the Secured Obligations secured hereunder.
7. ATTORNEY-IN-FACT. The Pledgor hereby appoints the Agent
as the Pledgor's attorney-in-fact for the purposes of carrying
out the provisions of this Agreement and taking any action and
executing any instrument which the Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment is
coupled with an interest and is irrevocable; provided, that the
Agent shall have and may exercise rights under this power of
attorney only upon the occurrence and during the continuance of
an Event of Default. Without limiting the generality of the
foregoing, upon the occurrence and during the continuance of an
Event of Default, the Agent shall have the right and power to
receive, endorse and collect all checks and other orders for the
payment of money made payable to the Pledgor representing any
dividend, interest payment, principal payment or other distribu-
tion payable or distributable in respect of, or otherwise
constituting, the Collateral or any part thereof and to give full
discharge for the same.
8. WAIVER BY PLEDGOR. The Pledgor waives (to the extent
permitted by applicable law) any right to require any Secured
Party or any other obligee of the Secured Obligations to (a)
proceed against any other Pledgor or any Person, including
without limitation any Guarantor, (b) proceed against or exhaust
any Collateral or other collateral for the Secured Obligations,
or (c) pursue any other remedy in its power; and waives (to the
extent permitted by applicable law) any defense arising by reason
of any disability or other defense of any other Pledgor or any
other Person, including without limitation any Guarantor, or by
reason of the cessation from any cause whatsoever of the
liability of any other Pledgor or any other Person, including
without limitation, any Guarantor. The Agent may at any time
deliver (without representation, recourse or warranty) the
Collateral or any part thereof to the Pledgor and the receipt
thereof by the Pledgor shall be a complete and full acquittance
for the Collateral so delivered, and the Agent shall thereafter
be discharged from any liability or responsibility therefor.
9. DIVIDENDS AND VOTING RIGHTS.
(a) All dividends and other distributions with respect to
the Pledged Stock shall be subject to the pledge hereunder,
except for cash dividends permitted to be made under the Credit
Agreement, which may be retained by the Pledgor so long as no
Event of Default shall have occurred and be continuing, and shall
be retained by the Pledgor free from any Lien hereunder. Upon
5<PAGE>
the occurrence and during the continuance of any Event of
Default, all such cash and other dividends shall be promptly
delivered to the Agent if requested by the Agent (together, if
the Agent shall request, with stock powers or instruments of
assignment duly executed in blank affixed to any stock
certificate or other negotiable document or instrument so
distributed) to be held, released or disposed of by it hereunder
or, at the option of the Agent, to be applied to the Secured
Obligations as they become due.
(b) So long as no Event of Default shall have occurred and
be continuing, the registration of the Collateral in the name of
the Pledgor shall not be changed and the Pledgor shall be
entitled to exercise all voting and other rights and powers
pertaining to the Collateral for all purposes not inconsistent
with the terms hereof.
(c) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Agent, all rights of the
Pledgor to receive and retain dividends upon the Collateral shall
cease and shall thereupon be vested in the Agent for the benefit
of the Lenders.
(d) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Agent, all rights of the
Pledgor to exercise the voting or consensual rights and powers
which it is authorized to exercise with respect to the Collateral
pursuant to subsection (b) above shall cease and the Agent may
thereupon (but shall not be obligated to), at its request, cause
such Collateral to be registered in the name of the Agent or its
nominee or agent for the benefit of the Lenders and exercise such
voting or consensual rights and powers as appertain to ownership
of such Collateral, and to that end the Pledgor hereby appoints
the Agent as its proxy, with full power of substitution, to vote
and exercise all other rights as a shareholder with respect to
the Pledged Stock hereunder upon the occurrence and during the
continuance of any Event of Default, which proxy is coupled with
an interest and is irrevocable prior to termination of this
Agreement as set forth in SECTION 22 hereof, and the Pledgor
hereby agrees to provide such further proxies as the Agent may
request; provided, however, that the Agent in its discretion may
from time to time refrain from exercising, and shall not be
obligated to exercise, any such voting or consensual rights or
such proxy.
10. POWER OF SALE. Until all of the Secured Obligations
shall have irrevocably been paid in full, the power of sale and
other rights, powers and remedies granted to the Agent for the
benefit of the Lenders hereunder shall continue to exist and may
be exercised by the Agent at any time and from time to time
irrespective of the fact that any Secured Obligations or any part
thereof may have become barred by any statute of limitations or
that the liability of the Pledgor may have ceased.
11. OTHER RIGHTS. The rights, powers and remedies given to
the Agent for the benefit of the Lenders by this Agreement shall
be in addition to all rights, powers and remedies given to any
Lenders by virtue of any statute or rule of law. Any forbearance
or failure or delay by the Agent in exercising any right, power
or remedy hereunder shall not be deemed to be a waiver of such
right, power or remedy, and any single or partial exercise of any
right, power or remedy hereunder shall not preclude the further
exercise thereof. Every right, power and remedy of the Lenders
6<PAGE>
shall continue in full force and effect until such right, power
or remedy is specifically waived by the Required Lenders by an
instrument in writing.
12. ANTI-MARSHALLING PROVISIONS. The right is hereby given
by the Pledgor to the Agent, for the benefit of the Secured
Parties, to make releases (whether in whole or in part) of all or
any part of the Collateral agreeable to the Agent without notice
to, or the consent, approval or agreement of other parties and
interests, including junior lienors, which releases shall not
impair in any manner the validity of or priority of the Liens and
security interests in the remaining Collateral conferred under
such documents, nor release the Pledgor from personal liability
for the Secured Obligations hereby secured. Notwithstanding the
existence of any other security interest in the Collateral held
by the Agent, for the benefit of the Secured Parties, the Agent
shall have the right to determine the order in which any or all
of the Collateral shall be subjected to the remedies provided in
this Agreement. The proceeds realized upon the exercise of the
remedies provided herein shall be applied by the Agent, for the
benefit of the Secured Parties, in the manner provided in SECTION
10.5 of the Credit Agreement. The Pledgor hereby waives any and
all right to require the marshalling of assets in connection with
the exercise of any of the remedies permitted by applicable law
or provided herein.
13. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the
Secured Parties, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document or any other
agreement or instrument relating to any of the Secured
Obligations;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Secured
Obligations, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument
relating to any of the Secured Obligations;
(c) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for all or any of
the Secured Obligations; or
(d) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, the
Pledgor in respect of the Secured Obligations or of this
Agreement.
14. DEFINITIONS. All terms used herein unless otherwise
defined in the Credit Agreement shall be defined in accordance
with the appropriate definitions appearing in the Uniform
Commercial Code as in effect in Georgia, and such definitions are
hereby incorporated herein by reference and made a part hereof.
15. ENTIRE AGREEMENT; WAIVERS. This Agreement, together
with the Credit Agreement, the Guaranty Agreement and other Loan
Documents, constitutes and expresses the entire understanding
between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings,
7<PAGE>
inducements, commitments or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof
control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof. Neither this
Agreement nor any portion or provision hereof may be changed,
altered, modified, supplemented, discharged, canceled,
terminated, or amended orally or in any manner other than by an
agreement, in writing signed by the parties hereto. No waiver of
any provision of this Pledge Agreement nor consent to any
departure by Pledgor herefrom shall in any event be effective
unless the same shall be in writing and signed by the Agent, and
then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is
given.
16. FURTHER ASSURANCES. The Pledgor agrees at its own
expense to do such further acts and things, and to execute and
deliver such additional conveyances, assignments, financing
statements, agreements and instruments, as the Agent may at any
time reasonably request in connection with the administration or
enforcement of this Agreement or related to the Collateral or any
part thereof or in order better to assure and confirm unto the
Agent its rights, powers and remedies for the benefit of the
Lenders hereunder. The Pledgor hereby consents and agrees that
the issuers of or obligors in respect of the Collateral shall be
entitled to accept the provisions hereof as conclusive evidence
of the right of the Agent, on behalf of the Lenders, to exercise
its rights hereunder with respect to the Collateral,
notwithstanding any other notice or direction to the contrary
heretofore or hereafter given by the Pledgor or any other Person
to any of such issuers or obligors. The Agent may from time to
time, at its option, perform any act which Pledgor agrees
hereunder to perform and which Pledgor shall fail to perform
after being requested in writing to so perform and the Agent may
from time to time take any other action which the Agent
reasonably deems necessary for the maintenance, preservation or
protection of any of the Pledged Collateral or of the security
interest therein.
17. BINDING AGREEMENT; ASSIGNMENT. This Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and
inure to the benefit of the parties hereto, and to their
respective successors and assigns, except that Pledgor shall not
assign this Agreement or any interest herein or in the
Collateral, or any part thereof, or otherwise pledge, encumber or
grant any option with respect to the Collateral, or any part
thereof, or any cash or property held by the Agent as Collateral
under this Agreement. All references herein to the Agent shall
include any successor thereof, each Lender and any other obligees
from time to time of the Secured Obligations.
18. SWAP AGREEMENTS. All obligations of the Borrower under
Swap Agreements shall be deemed to be Secured Obligations secured
hereby, and each Lender or affiliate of a Lender party to any
such Swap Agreement shall be deemed to be a Secured Party
hereunder.
19. SEVERABILITY. In case any Lien, security interest or
other right of any Secured Party or any provision hereof shall be
held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien,
security interest or other right granted hereby or provision
hereof.
8<PAGE>
20. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and all the counterparts taken together
shall be deemed to constitute one and the same instrument.
21. EXPENSES; INDEMNIFICATION. Upon demand, Pledgor will
pay, to the Agent the amount of any and all expenses, including
the reasonable fees and disbursements of its counsel and of any
experts, which the Agent may incur in connection with the
administration of this Pledge Agreement or any instrument
relating hereto, the removal, custody, preservation, use or
operation of, or the sale of, collection from, or other
realization upon, any of the Collateral, the exercise or
enforcement of any of the rights of the Agent and the Secured
Parties with respect to Collateral, the failure by Pledgor to
perform or observe any of the provisions hereof or the
advancement of any funds in connection with actions taken
pursuant to this Agreement. Without limitation of SECTION 12.9 of
the Credit Agreement or any other indemnification provision in
any Loan Document, the Pledgor hereby covenants and agrees to
pay, indemnify, and hold the Secured Parties harmless from and
against any and all out-of-pocket liabilities, costs, expenses or
disbursements of any kind or nature whatsoever arising in
connection with any claim or litigation by any Person resulting
from the execution, delivery, enforcement, performance and
administration of this Agreement or the Loan Documents, or the
transactions contemplated hereby or thereby, or in any respect
relating to the Collateral or any transaction pursuant to which
the Pledgor has incurred any Obligation (all the foregoing,
collectively, the "indemnified liabilities"); provided, however,
that the Pledgor shall have no obligation hereunder with respect
to indemnified liabilities resulting from the willful misconduct
or gross negligence of the Agent or any Lender. The agreements
in this subsection shall survive repayment of all Secured
Obligations and termination or expiration of this Agreement.
22. TERMINATION. This Agreement and all obligations of the
Pledgor hereunder shall terminate on irrevocable payment in full
of the Secured Obligations, at which time the Liens and rights
granted to the Agent for the benefit of the Lenders hereunder
shall automatically terminate and no longer be in effect, and the
Collateral shall automatically be released from the Liens created
hereby. Upon such termination of this Agreement, the Agent
shall, at the sole expense of the Pledgor, deliver to the Pledgor
the certificates evidencing the Pledged Stock (and any other
property received as a dividend or distribution or otherwise in
respect of the Pledged Stock then in its custody), together with
any cash then constituting the Collateral, not then sold or
otherwise disposed of in accordance with the provisions hereof
and take such further actions as may be necessary to effect the
same and as shall be reasonably acceptable to the Agent.
23. ADDITIONAL SHARES. If the Pledgor shall acquire or
hold (a) any additional shares of capital stock of any Pledged
Subsidiary or (b) any shares of capital stock of any Subsidiary
not listed on SCHEDULE I hereto which are required to be subject
to a Pledge Agreement pursuant to the terms of ARTICLE IV or any
other provision of the Credit Agreement (any such shares
described in clauses (a) or (b) above being referred to herein as
the "Additional Shares"), the Pledgor shall deliver to the Agent
for the benefit of the Lenders (i) a revised SCHEDULE I hereto
reflecting the ownership and pledge of such Additional Shares and
(ii) a Stock Pledge Agreement Supplement in the form of Exhibit A
hereto with respect to such Additional Shares duly completed and
9<PAGE>
signed by the Pledgor. The Pledgor shall comply with the
requirements of this SECTION 23 concurrently with the acquisition
of any such Additional Shares in the case of shares described in
clause (a) above, and within the time period specified in ARTICLE
IV or elsewhere in the Credit Agreement with respect to shares
described in clause (b) above.
24. REMEDIES CUMULATIVE. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies
of the Agent provided by law or under the Credit Agreement, the
other Loan Documents, or other applicable agreements or
instruments. The making of the Loans to the Borrower pursuant to
the Credit Agreement, and the issuing of Letters of Credit for
the benefit of the Borrower, shall be conclusively presumed to
have been made or extended, respectively, in reliance upon the
Pledgor's grant of the Lien on the Collateral hereunder.
25. NOTICES. Any notice required or permitted hereunder
shall be given, (a) with respect to the Pledgor, at its address
indicated in SECTION 12.2 of the Credit Agreement and (b) with
respect to the Agent or a Lender, at the Agent's address
indicated in SECTION 12.2 of the Credit Agreement. All such
notices shall be given and shall be effective as provided in
SECTION 12.2 of the Credit Agreement.
26. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
(b) THE PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF HAMILTON,
STATE OF TENNESSEE, UNITED STATES OF AMERICA OR THE COUNTY
OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE PLEDGOR EXPRESSLY WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR
TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY,
ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND
THE PLEDGOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUCH SUIT, ACTION OR PROCEEDING.
(c) THE PLEDGOR AGREES THAT SERVICE OF PROCESS MAY BE
MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE
PREPAID) TO THE ADDRESS OF THE PLEDGOR PROVIDED IN SECTION
12.2 OF THE CREDIT AGREEMENT, OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) or (b) HEREOF
SHALL PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE THE PLEDGOR OR ANY OF THE PLEDGOR'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
10<PAGE>
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION
THEREWITH, THE PLEDGOR AND THE AGENT ON BEHALF OF THE
LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION OR
PROCEEDING.
11<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this
Stock Pledge Agreement on the day and year first written above.
PLEDGOR:
MILLER INDUSTRIES, INC.
By: /s/ Jeffrey I. Badgley
Name: Jeffrey I. Badgley
Title: President
AGENT:
NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as Agent for the
Lenders
By: /s/ Gregory E. Merriman
Name: Gregory E. Merriman
Title: Officer, Commercial Banking
STOCK PLEDGE AGREEMENT
SIGNATURE PAGE 1 OF 1
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Name of Issuer Pledgor/ Class of Total Par Number Number of Certificate
Owner(s) Stock Number Value of Shares Shares No(s).
Pledged of Shares Per Issued and Pledged
Authorized Share Outstanding
---------------------------------------------------------------------------------------------------------------------
<S> <S> <S> <C> <C> <C> <C> <C>
A-2 Wrecker Miller Common 100 $1.00 100 100 2
Service, Inc. Industries,
Inc.
A-Excellence Miller Common 1,000 $0.01 100 100 1
Towing Co. Industries,
Inc.
All American Miller Common 4,000 None 100 100 2
Towing Services, Industries,
Inc. Inc.
Allied Towing and Miller Common 500 $1.00 500 500 2
Recovery, Inc. Industries,
Inc.
APACO, Inc. Miller Common 1,000 $0.01 100 100 1
Industries,
Inc.
Apple Towing Co., Miller Common 1,000 $0.01 100 100 1
Inc. Industries,
Inc.
A to Z Miller Common 50,000 None 13,100 13,100 2
Enterprises, Inc. Industries,
Inc.
B&B Associated Miller Common 1,000 $0.01 100 100 1
Industries, Inc. Industries,
Inc.
Bear Miller Common 1,000 $0.01 100 100 1
Transportation, Industries,
Inc. Inc.
Bert's Towing Miller Common 1,000 None 100 100 4
Recovery Industries,
Corporation Inc.
Bob Bolin Miller Common 30,000 $1.00 20,000 20,000 6
Services, Inc. Industries,
Inc.
Boulevard & Miller Common 10,000 $1.00 1,000 1,000 2
Trumbull Towing, Industries,
Inc. Inc.
Brewer's, Inc. Miller Common 50,000 None 1,000 1,000 2
Industries,
Inc.
C & L Towing Miller Common 1,000 $0.01 100 100 1
Services, Inc. Industries,
Inc.
Casson Investment Miller Common 30,000 $0.10 9,725 9,725 11
Corporation Industries,
Inc.
/TABLE
<PAGE>
<TABLE>
<CAPTION>
Name of Issuer Pledgor/ Class of Total Par Number Number of Certificate
Owner(s) Stock Number Value of Shares Shares No(s).
Pledged of Shares Per Issued and Pledged
Authorized Share Outstanding
--------------------------------------------------------------------------------------------------------------------
<S> <S> <S> <C> <C> <C> <C> <C>
Cedar Bluff 24 Miller Common 1,000 $0.01 100 100 1
Hour Towing, Inc. Industries,
Inc.
Century Holdings, Miller Common 100 None 100 100 2
Inc. Industries,
Inc.
Chevron, Inc. Miller Common 2,500 $100 1,746 1,746 24
Industries,
Inc.
Competition Miller Common 1,000 $0.01 100 100 1
Wheelift, Inc. Industries,
Inc.
Dick's Towing& Miller Common 500 None 500 500 5
Road Service, Inc. Industries,
Inc.
E.B.T., Inc. Miller Common 50,000 $1.00 10,000 10,000 3
Industries,
Inc.
Export Miller Common 15,000 None 100 100 2
Enterprises, Inc. Industries,
Inc.
Georgia Export Miller Common 10,000 $0.01 100 100 3
Enterprises, Inc. Industries,
Inc.
Golden West Towing Miller Common 120 None 120 120 2
Equipment Inc. Industries,
Inc.
H&H Towing Miller Common 1,000 $0.01 100 100 1
Enterprises, Inc. Industries,
Inc.
Hall's Towing Miller Common 1,000 $1.00 525 525 4
Service, Inc. Industries,
Inc.
H.M.R. Miller Common 1,000 None 5 5 2
Enterprises, Inc. Industries,
Inc.
Interstate Towing Miller Common 1,000 $0.01 100 100 1
& Recovery, Inc. Industries,
Inc.
Jenkins Wrecker Miller Common 1,000 $1.00 500 500 3
Service, Inc. Industries,
Inc.
Jennings Miller Common 100,000 $1.00 500 500 2
Enterprises, Inc. Industries,
Inc.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Name of Issuer Pledgor/ Class of Total Par Number Number of Certificate
Owner(s) Stock Number Value of Shares Shares No(s).
Pledged of Shares Per Issued and Pledged
Authorized Share Outstanding
---------------------------------------------------------------------------------------------------------------------
<S> <S> <S> <S> <S> <S> <S> <S>
Kauff's, Inc. Miller Common 1,000 $0.01 100 100 1
Industries,
Inc.
King Automotive & Miller Common 1,000 $1.00 200 200 2
Industrial Industries,
Equipment, Inc. Inc.
Lazer Tow Miller Common 1,000 $0.01 100 100 1
Services, Inc. Industries,
Inc.
Lewis Wrecker Miller Common 1,000 None 1,000 1,000 2
Service, Inc. Industries,
Inc.
Lincoln Towing Miller Common 1,000 $0.01 100 100 1
Enterprises, Inc. Industries,
Inc.
Merl's Towing Miller Common 1,000 $0.01 100 100 1
Service, Inc. Industries,
Inc.
Mid-America Miller Common 1,000 $0.01 100 100 1
Wrecker & Industries,
Equipment Sales, Inc.
Inc. of Colorado
Mike's Wrecker Miller Common 500 $0.01 360 360 5
Service, Inc. Industries,
Inc.
Miller/Greeneville Miller Common 1,000 $0.01 100 100 1
, Inc. Industries,
Inc.
Miller Industries Miller Common 1,000 $0.01 100 100 1
Distributing, Inc. Industries,
Inc.
Miller Industries Miller Common 1,000 None 100 100 2
International, Industries,
Inc. Inc.
Moore's Service & Miller Common 1,000 $0.01 100 100 1
Towing, Inc. Industries,
Inc.
Moore's Towing Miller Common 1,000 $0.01 100 100 1
Service, Inc. Industries,
Inc.
Official Towing, Miller Common 1,000 $0.01 100 100 1
Inc. Industries,
Inc.
O'Hare Truck Miller Common 1,000 $0.01 100 100 1
Service, Inc. Industries,
Inc.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Name of Issuer Pledgor/ Class of Total Par Number Number of Certificate
Owner(s) Stock Number Value of Shares Shares No(s).
Pledged of Shares Per Issued and Pledged
Authorized Share Outstanding
---------------------------------------------------------------------------------------------------------------------
<S> <S> <S> <C> <C> <C> <C> <C>
Pete's A Towing, Miller Common 1,000 None 1,000 1,000 2
Inc. Industries,
Inc.
Pipes Enterprises, Miller Common 500 None 500 500 2
Inc. Industries,
Inc.
Purpose, Inc. Miller Common 30,000 $1.00 500 500 3
Industries,
Inc.
RAR Enterprises, Miller Common 100 None 50 50 2
Inc. Industries,
Inc.
Randy's High Miller Common 50,000 None 10,000 10,000 2
Country Towing, Industries,
Inc. Inc.
Ray Harris, Inc. Miller Common 100,000 $1.00 100 100 2
Industries,
Inc.
Road Butler, Inc. Miller Common 1,000 $0.01 100 100 1
Industries,
Inc.
Road One, Inc. Miller Common 1,000 $0.01 100 100 1
Industries,
Inc.
Road One Service, Miller Common 1,000 $0.01 100 100 1
Inc. Industries,
Inc.
Ronny Miller Miller Common 1,000 $1.00 1,000 1,000 2
Wrecker Service Industries,
Inc. Inc.
Sandy's Auto & Miller Common 250 None 10 10 3
Truck Service, Industries,
Inc. Inc.
Southern Wrecker Miller Common 100 None 50 50 2
Center, Inc. Industries,
Inc.
Southern Wrecker Miller Common 1,000 $0.01 100 100 1
Sales, Inc. Industries,
Inc.
Speed's Miller Common 1,000 None 438 438 4
Automotive, Inc. Industries,
Inc.
Speed's Rentals, Miller Common 500 None 60 60 2
Inc. Industries,
Inc.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Name of Issuer Pledgor/ Class of Total Par Number Number of Certificate
Owner(s) Stock Number Value of Shares Shares No(s).
Pledged of Shares Per Issued and Pledged
Authorized Share Outstanding
-------------------------------------------------------------------------------------------------------------------
<S> <S> <S> <C> <C> <C> <C> <C>
Sroga's Automotive Miller Common 1,000 $0.01 100 100 1
Services, Inc. Industries,
Inc.
Suburban Wrecker Miller Common 2,000 None 100 100 2
Service, Inc. Industries,
Inc.
Ted's of Fayville, Miller Common 1,900 None 1,900 1,900 2
Inc. Industries,
Inc.
Texas Towing Miller Common 1,000 $0.01 100 100 1
Corporation Industries,
Inc.
Thompson's Wrecker Miller Common 1,000 $0.01 100 100 1
Service, Inc. Industries,
Inc.
Treasure Coast Miller Common 1,000 $0.01 100 100 1
Towing, Inc. Industries,
Inc.
Vulcan Miller Common 1,000 $0.01 100 100 1
International Industries,
(Delaware), Inc. Inc.
Walker Towing, Miller Common 2,500 None 2,500 2,500 2
Inc. Industries,
Inc.
Wes's Service Miller Common 100 None 100 100 3
Incorporated Industries,
Inc.
Zebra Towing, Inc. Miller Common 100 None 100 100 2
Industries,
Inc.
</TABLE>
<PAGE>
EXHIBIT A
STOCK PLEDGE AGREEMENT SUPPLEMENT
THIS STOCK PLEDGE AGREEMENT SUPPLEMENT (this "
Supplement"), dated as of ______________, 199__ is made by and
between MILLER INDUSTRIES, INC., a Tennessee corporation (the
"Pledgor"), and NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, a
national banking association organized and existing under the
laws of the United States, as Agent (the "Agent") for each of the
financial institutions (the "Lenders") now or hereafter party to
the Credit Agreement dated as of January 30, 1998 among such
Lenders, the Agent, Pledgor and Miller Industries Towing
Equipment Inc. All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned
thereto in the Stock Pledge Agreement (as defined below).
WHEREAS, the Pledgor is a party to that certain Stock
Pledge Agreement dated as of January 30, 1998 by the Pledgor in
favor of the Agent for the benefit of the Lenders (the "Stock
Pledge Agreement"); and
WHEREAS, the Pledgor is required under the terms of the
Credit Agreement and the Stock Pledge Agreement to cause certain
shares of capital stock held by it and listed on Annex A to this
Supplement (the "Additional Shares") to become subject to the
Stock Pledge Agreement; and
WHEREAS, a material part of the consideration given in
connection with and as an inducement to the execution and
delivery of the Credit Agreement by the Agent and the Lenders was
the obligation of the Pledgor to pledge to the Agent for the
benefit of the Lenders the Additional Shares, whether then owned
and not required to be subject to a pledge or subsequently
acquired or created; and
WHEREAS, the Agent and the Lenders have required the
Pledgor to pledge to the Agent for the benefit of the Lenders
all of the Additional Shares in accordance with the terms of the
Credit Agreement and the Stock Pledge Agreement;
NOW, THEREFORE, the Pledgor hereby agrees as follows with
the Agent, for the benefit of the Lenders:
1. The Pledgor hereby reaffirms and acknowledges the
pledge and collateral assignment to, and the grant of security
interest in, the Collateral contained in the Stock Pledge
Agreement and pledges and collaterally assigns to the Agent for
the benefit of the Lenders, and grants to the Agent for the
benefit of the Lenders a first priority lien and security
interest in, the Additional Shares and all of the following:
(a) all cash, securities, dividends, rights, and other
property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of
the Additional Shares, other than cash dividends permitted
to be retained by the Pledgor under SECTION 9 of the Pledge
Agreement;
(b) all other property hereafter delivered to the
<PAGE>
Agent in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or
evidencing such property and all cash, securities, interest,
dividends, rights, and other property at any time and from
time to time declared or distributed in respect of or in
exchange for any or all of the Additional Shares; and
(c) all proceeds of any of the foregoing.
The Pledgor hereby acknowledges, agrees and confirms that, by its
execution of this Supplement, the Additional Shares constitute
"Pledged Stock" under and are subject to the Pledge Agreement.
Each of the representations and warranties with respect to
Pledged Stock contained in the Pledge Agreement is hereby made by
the Pledgor with respect to the Additional Shares. A revised
SCHEDULE I to the Pledge Agreement reflecting the Additional
Shares and all other Pledged Stock, together with stock
certificates representing the Additional Shares with stock powers
duly executed in blank by the Pledgor, have been delivered
herewith to the Agent.
IN WITNESS WHEREOF, the Pledgor has caused this Supplement
to be duly executed by its authorized officer as of the day and
year first above written.
MILLER INDUSTRIES, INC.
By:________________________________
Name:______________________________
Title:____________________________
Acknowledged and accepted:
NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION,
as Agent for the Lenders
By:________________________________
Name:______________________________
Title:_____________________________
<PAGE>
ANNEX A
Additional Shares
<TABLE>
<CAPTION>
Name of Pledged Class of Stock Total Number of Certificate Numbers
Subsidiary or Issuer -------------- Shares Pledged -------------------
- -------------------- ---------------
<S> <S> <C> <C>
</TABLE>
STOCK PLEDGE AGREEMENT
(US Subsidiaries)
THIS STOCK PLEDGE AGREEMENT (the "Agreement") is made and
entered into as of this 30th day of January, 1998 by and between
EACH OF THE UNDERSIGNED direct and indirect subsidiaries of
Miller Industries, Inc. ("Miller"), a Tennessee corporation (the
"Pledgors", and each individually a "Pledgor"), and NATIONSBANK
OF TENNESSEE, NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United
States, as Agent (the "Agent") for each of the financial
institutions (the "Lenders" and collectively with the Agent the
"Secured Parties") now or hereafter party to the Credit Agreement
(as defined below). All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned
thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to
Miller and to Miller Industries Towing Equipment Inc., a Delaware
company ("Miller Towing," and together with Miller, the
"Borrower"), certain credit facilities, including a revolving
credit facility with a letter of credit sublimit and a swing line
sublimit, pursuant to the Credit Agreement dated as of January
30, 1998 among the Borrower, the Agent and the Lenders (as from
time to time amended, revised, modified, supplemented, or amended
and restated the "Credit Agreement"); and
WHEREAS, all or some of the Pledgors have entered into the
Credit Agreement or that certain Guaranty Agreement of even date
herewith in favor of the Agent for the benefit of the Lenders;
and
WHEREAS, as collateral security for the payment and
performance of the Borrower's Obligations and the Guarantors'
Obligations (as defined in the Guaranty), each Pledgor is willing
to pledge and grant to the Agent for the benefit of the Lenders a
security interest in all of the issued and outstanding shares of
capital stock, whether now in existence or hereafter issued, of
each of its subsidiaries which are Domestic Subsidiaries, and 65%
(or such lesser percentage as such Pledgor shall own) of the
issued and outstanding shares of capital stock or equivalent
indicia of ownership under the law or practice of any foreign
jurisdiction, whether now in existence or hereafter issued, of
each of its subsidiaries which are Direct Foreign Subsidiaries,
all of which are required to be subject to a Pledge Agreement
pursuant to the Credit Agreement (the "Pledged Stock"), including
without limitation the Pledged Stock in such Subsidiaries more
particularly described on SCHEDULE I hereto (such Subsidiaries,
together with all other Subsidiaries whose capital stock may be
required to be subject to a Pledge Agreement from time to time,
are hereinafter referred to collectively as the "Pledged
Subsidiaries"); and
WHEREAS, the Lenders are unwilling to enter into the Loan
Documents unless each Pledgor enters into this Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to
enter into the Loan Documents, to extend credit to the Borrower
<PAGE>
and to make loans and advances and issue letters of credit and in
consideration of the premises and the mutual covenants contained
herein, the parties hereto agree as follows:
1. PLEDGE OF STOCK; OTHER COLLATERAL.
(a) As collateral security for the payment and performance
by the Borrower of its now or hereafter existing Obligations and
by the Pledgors of their now or hereafter existing liabilities
and obligations under the Guaranty (collectively with the
Obligations, the "Secured Obligations"), each Pledgor hereby
pledges and collaterally assigns to the Agent for the benefit of
the Lenders, and grants to the Agent for the benefit of the
Lenders a first priority lien and security interest in, the
Pledged Stock and all of the following:
(i) all cash, securities, dividends, rights and
other property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of
the Pledged Stock, other than cash dividends permitted to be
retained by the Pledgors under SECTION 9 hereof;
(ii) all other property hereafter delivered to the
Agent in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or
evidencing such property and all cash, securities, interest,
dividends, rights, and other property at any time and from
time to time declared or distributed in respect of or in
exchange for any or all of the Pledged Stock; and
(iii) all proceeds of any of the foregoing.
All such Pledged Stock, certificates, instruments, cash,
securities, interest, dividends, rights and other property
referred to in this SECTION 1, other than cash dividends issued
in respect of such Pledged Stock that are permitted to be
retained by the Pledgors under SECTION 9 hereof, are herein
collectively referred to as the "Collateral." All of the Pledged
Stock described on SCHEDULE I in effect from time to time is
currently owned by the respective Pledgors and represented by the
stock certificates listed on SCHEDULE I hereto. Certificates
evidencing all the Pledged Stock on the Closing Date, together
with stock powers duly executed in blank by the Pledgors, have
been delivered to the Agent.
(b) Each Pledgor agrees to deliver all the Collateral to
the Agent at such location or locations as the Agent shall from
time to time designate by written notice pursuant to SECTION 25
hereof for its custody at all times until termination of this
Agreement, together with such instruments of assignment and
transfer as requested by the Agent.
(c) Each Pledgor agrees to deliver all share certificates,
documents, agreements, financing statements, amendments thereto,
assignments or other writings as the Agent may reasonably request
to carry out the terms of this Agreement or to protect or enforce
the lien and security interest in the Collateral hereunder
granted thereby to the Agent for the benefit of the Lenders and
further agrees to do and cause to be done all things determined
by the Agent to be reasonably necessary to perfect and keep in
2
<PAGE>
full force the Lien in the Collateral hereunder granted thereby
in favor of the Agent for the benefit of the Lenders, including,
but not limited to, the prompt payment of all reasonable out-of-
pocket fees and expenses incurred in connection with any filings
made to perfect or continue the lien and security interest in the
Collateral hereunder granted thereby in favor of the Agent for
the benefit of the Lenders. Each Pledgor agrees to make
appropriate entries upon its books and records (including without
limitation its stock record and transfer books) disclosing the
Lien in the Collateral hereunder granted thereby to the Agent for
the benefit of the Lenders hereunder.
(d) All advances, charges, reasonable costs and reasonable
expenses, including reasonable attorneys' fees, incurred or paid
by any Secured Party in exercising any right, power or remedy
conferred by this Agreement, or in the enforcement thereof, shall
become a part of the Secured Obligations and shall be paid to the
Agent for the benefit of the Lenders by the Pledgors immediately
upon demand therefor, with interest thereon until paid in full at
the Default Rate for Base Rate Loans.
2. STATUS OF PLEDGED STOCK. Each Pledgor hereby represents
and warrants to the Agent for the benefit of the Lenders that (i)
all of the shares of Pledged Stock are validly issued and
outstanding, fully paid and nonassessable and constitute all the
authorized, issued and outstanding shares of common stock of each
of the Pledged Subsidiaries of such Pledgor which are Domestic
Subsidiaries and at least 65% (or such lesser percentage as is
owned by such Pledgor and indicated on SCHEDULE I) of the
authorized, issued and outstanding shares of common stock of each
of the Pledged Subsidiaries of such Pledgor which are Direct
Foreign Subsidiaries, (ii) such Pledgor is the registered and
record and beneficial owner of such Pledged Stock, free and clear
of all Liens, charges, equities, encumbrances and restrictions on
pledge or transfer (other than the Liens created under the Loan
Documents and restrictions imposed by applicable federal or state
securities law), (iii) such Pledgor has full corporate power,
legal right and lawful authority to execute this Agreement and to
pledge, assign and transfer such Pledged Stock in the manner and
form hereof, and (iv) the pledge, assignment and delivery of such
Pledged Stock by such Pledgor to the Agent for the benefit of the
Lenders pursuant to this Agreement creates, together with the
delivery of the certificates evidencing such Pledged Stock, which
delivery has heretofore been accomplished, a valid and perfected
first priority security interest in such Pledged Stock in favor
of the Agent for the benefit of the Lenders, securing the payment
of the Secured Obligations. Except as permitted under SECTIONS
9.5 or 9.7 of the Credit Agreement, none of the Pledged Stock
(nor any interest therein or thereto) shall be sold, transferred
or assigned, nor any Lien created therein, without the Agent's
prior written consent. Each Pledgor covenants with the Agent for
the benefit of the Lenders that it shall at all times cause the
Pledged Stock to be represented by the certificates now and
hereafter delivered to the Agent in accordance with SECTION 1
hereof and that it shall not cause, suffer or permit any of the
Pledged Subsidiaries to issue any capital stock, or securities
convertible into, or exercisable or exchangeable for, capital
stock, at any time during the term of this Agreement other than
to the Pledgors and subject to this Agreement pursuant to SECTION
23 hereof.
3
<PAGE>
3. PRESERVATION AND PROTECTION OF COLLATERAL.
(a) The Agent shall be under no duty or liability with
respect to the collection, protection or preservation of the
Collateral, or otherwise, other than the obligation to deal with
the Collateral while in its possession in the same manner as the
Agent deals with similar securities or property held as
collateral for loans.
(b) Each Pledgor agrees to pay when due all taxes, charges,
Liens and assessments against the Collateral in which it has an
interest, unless being contested in good faith by appropriate
proceedings diligently conducted and against which adequate
reserves have been established in accordance with GAAP and
evidenced to the satisfaction of the Agent and provided further
that all enforcement proceedings in the nature of levy or
foreclosure are effectively stayed. Upon the failure of the
Pledgors to so pay or contest such taxes, charges, Liens or
assessments, the Agent at its option may pay or contest any of
them (the Agent having the sole right to determine the legality
or validity and the amount necessary to discharge such taxes,
charges, Liens or assessments).
4. DEFAULT. Upon the occurrence and during the
continuance of any Event of Default, the Agent is given full
power and authority, then or at any time thereafter, to sell,
assign and deliver or collect the whole or any part of the
Collateral, or any substitute therefor or any addition thereto,
in one or more sales, with or without any previous demands or
demand of performance or, to the extent permitted by law, notice
or advertisement, in such order as the Agent may elect; and any
such sale may be made either at public or private sale at the
Agent's place of business or elsewhere, either for cash or upon
credit or for future delivery, at such price as the Agent may
reasonably deem fair; and the Agent may be the purchaser of any
or all Collateral so sold and hold the same thereafter in its own
right free from any claim of the Pledgors or right of redemption.
Demands of performance, advertisements and presence of property
and sale and notice of sale are hereby waived to the extent per-
missible by law and the Pledgors acknowledge that the Collateral
is of a type customarily sold on a recognized market. Any sale
hereunder may be conducted by an auctioneer or any officer or
agent of the Agent. Each Pledgor recognizes that the Agent may be
unable to effect a public sale of the Collateral by reason of
certain prohibitions contained in the Securities Act of 1933, as
amended (the "Securities Act"), and applicable law, and may be
otherwise delayed or adversely affected in effecting any sale by
reason of present or future restrictions thereon imposed by
governmental authorities, and that as a consequence of such
prohibitions and restrictions the Agent may be compelled (i) to
resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to
acquire the stock for their own account, for investment and not
with a view to the distribution or resale thereof, or (ii) to
seek regulatory approval of any proposed sale or sales, or
(iii) to limit the amount of Collateral sold to any Person or
group. Each Pledgor agrees and acknowledges that private sales
so made may be at prices and upon terms less favorable to the
Pledgors than if such Collateral was sold either at public sales
or at private sales not subject to other regulatory restrictions,
4
<PAGE>
and that the Agent has no obligation to delay the sale of any of
the Collateral for the period of time necessary to permit the
issuer of such Collateral to register or otherwise qualify the
Pledged Stock, even if such issuer would agree to register or
otherwise qualify for public sale under the Securities Act or
applicable state law. Such Pledgor agrees that private sales made
under the foregoing circumstances will not, for that reason, be
deemed to have been made in a manner which is not commercially
reasonable. Each Pledgor hereby acknowledges that a ready market
may not exist for the Pledged Stock since it is not traded on a
national securities exchange or quoted on an automated quotation
system and agrees and acknowledges that in such event the Pledged
Stock may be sold for an amount less than a pro rata share of the
fair market value of the issuer's assets minus its liabilities.
In addition to the foregoing, the Lenders may exercise such other
rights and remedies as may be available under the Loan Documents,
at law or in equity.
5. PROCEEDS OF SALE. The proceeds of the sale of any of
the Collateral hereunder and all sums received or collected
hereunder from or on account of such Collateral shall be applied
to the payment of expenses incurred or paid by the Agent in
connection with any holding, sale, transfer or delivery of the
Collateral, to the payment of any other costs, charges,
reasonable attorneys' fees or expenses mentioned herein, and to
the payment of the Secured Obligations or any part thereof, all
in such order and manner as is provided in SECTION 10.5 of the
Credit Agreement and otherwise as the Agent may determine and as
permitted by applicable law. The Agent shall, upon satisfaction
in full of all such Secured Obligations, pay any balance to the
Pledgors or otherwise as may be required by applicable law.
6. PRESENTMENTS, DEMANDS AND NOTICES. The Agent shall not
be under any duty or obligation whatsoever to make or give any
presentments, demands for performances, notices of nonper-
formance, protests, notice of protest or notice of dishonor in
connection with any obligations or evidences of indebtedness held
thereby as collateral, or in connection with any obligations or
evidences of indebtedness which constitute in whole or in part
the Secured Obligations secured hereunder.
7. ATTORNEY-IN-FACT. Each Pledgor hereby appoints the
Agent as such Pledgor's attorney-in-fact for the purposes of
carrying out the provisions of this Agreement and taking any
action and executing any instrument which the Agent may deem
necessary or advisable to accomplish the purposes hereof, which
appointment is coupled with an interest and is irrevocable;
provided, that the Agent shall have and may exercise rights under
this power of attorney only upon the occurrence and during the
continuance of an Event of Default. Without limiting the
generality of the foregoing, upon the occurrence and during the
continuance of an Event of Default, the Agent shall have the
right and power to receive, endorse and collect all checks and
other orders for the payment of money made payable to such
Pledgor representing any dividend, interest payment, principal
payment or other distribution payable or distributable in respect
of, or otherwise constituting, the Collateral or any part thereof
and to give full discharge for the same.
8. WAIVER BY PLEDGORS. Each Pledgor waives (to the extent
5
<PAGE>
permitted by applicable law) any right to require the Agent or
any Lender or any other obligee of the Secured Obligations to (a)
proceed against any other Pledgor or any Person, including
without limitation any Guarantor, (b) proceed against or exhaust
any Collateral or other collateral for the Secured Obligations,
or (c) pursue any other remedy in its power; and waives (to the
extent permitted by applicable law) any defense arising by reason
of any disability or other defense of any other Pledgor or any
other Person, including without limitation any Guarantor, or by
reason of the cessation from any cause whatsoever of the
liability of any other Pledgor or any other Person, including
without limitation, any Guarantor. The Agent may at any time
deliver (without representation, recourse or warranty) the
Collateral or any part thereof to any Pledgor who has an interest
therein and the receipt thereof by such Pledgor shall be a
complete and full acquittance for the Collateral so delivered,
and the Agent shall thereafter be discharged from any liability
or responsibility therefor.
9. DIVIDENDS AND VOTING RIGHTS.
(a) All dividends and other distributions with respect to
the Pledged Stock shall be subject to the pledge hereunder,
except for cash dividends permitted to be made under the Credit
Agreement, which may be retained by the Pledgors so long as no
Event of Default shall have occurred and be continuing, and shall
be retained by the Pledgors free from any Lien hereunder. Upon
the occurrence and during the continuance of any Event of
Default, all such cash and other dividends shall be promptly
delivered to the Agent if requested by the Agent (together, if
the Agent shall request, with stock powers or instruments of
assignment duly executed in blank affixed to any stock
certificate or other negotiable document or instrument so
distributed) to be held, released or disposed of by it hereunder
or, at the option of the Agent, to be applied to the Secured
Obligations as they become due.
(b) So long as no Event of Default shall have occurred and
be continuing, the registration of the Collateral in the name of
any Pledgor shall not be changed and the Pledgors shall be
entitled to exercise all voting and other rights and powers
pertaining to the Collateral for all purposes not inconsistent
with the terms hereof.
(c) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Agent, all rights of the
Pledgors to receive and retain dividends upon the Collateral
shall cease and shall thereupon be vested in the Agent for the
benefit of the Lenders.
(d) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Agent, all rights of the
Pledgors to exercise the voting or consensual rights and powers
which it is authorized to exercise with respect to the Collateral
pursuant to subsection (b) above shall cease and the Agent may
thereupon (but shall not be obligated to), at its request, cause
such Collateral to be registered in the name of the Agent or its
nominee or agent for the benefit of the Lenders and exercise such
voting or consensual rights and powers as appertain to ownership
of such Collateral, and to that end each Pledgor hereby appoints
6
<PAGE>
the Agent as its proxy, with full power of substitution, to vote
and exercise all other rights as a shareholder with respect to
the Pledged Stock hereunder upon the occurrence and during the
continuance of any Event of Default, which proxy is coupled with
an interest and is irrevocable prior to termination of this
Agreement as set forth in SECTION 22 hereof, and each Pledgor
hereby agrees to provide such further proxies as the Agent may
request; provided, however, that the Agent in its discretion may
from time to time refrain from exercising, and shall not be
obligated to exercise, any such voting or consensual rights or
such proxy.
10. POWER OF SALE. Until all the Secured Obligations shall
have irrevocably been paid in full, the power of sale and other
rights, powers and remedies granted to the Agent for the benefit
of the Lenders hereunder shall continue to exist and may be
exercised by the Agent at any time and from time to time
irrespective of the fact that any Secured Obligations or any part
thereof may have become barred by any statute of limitations or
that the liability of any Pledgor may have ceased.
11. OTHER RIGHTS. The rights, powers and remedies given to
the Agent for the benefit of the Lenders by this Agreement shall
be in addition to all rights, powers and remedies given to any
Lenders by virtue of any statute or rule of law. Any forbearance
or failure or delay by the Agent in exercising any right, power
or remedy hereunder shall not be deemed to be a waiver of such
right, power or remedy, and any single or partial exercise of any
right, power or remedy hereunder shall not preclude the further
exercise thereof. Every right, power and remedy of the Lenders
shall continue in full force and effect until such right, power
or remedy is specifically waived by the Required Lenders by an
instrument in writing.
12. ANTI-MARSHALLING PROVISIONS. The right is hereby given
by each Pledgor to the Agent, for the benefit of the Secured
Parties, to make releases (whether in whole or in part) of all or
any part of the Collateral agreeable to the Agent without notice
to, or the consent, approval or agreement of other parties and
interests, including junior lienors, which releases shall not
impair in any manner the validity of or priority of the Liens and
security interests in the remaining Collateral conferred under
such documents, nor release such Pledgor from personal liability
for the Secured Obligations hereby secured. Notwithstanding the
existence of any other security interest in the Collateral held
by the Agent, for the benefit of the Secured Parties, the Agent
shall have the right to determine the order in which any or all
of the Collateral shall be subjected to the remedies provided in
this Agreement. The proceeds realized upon the exercise of the
remedies provided herein shall be applied by the Agent, for the
benefit of the Secured Parties, in the manner provided in SECTION
10.5 of the Credit Agreement. Each Pledgor hereby waives any and
all right to require the marshalling of assets in connection with
the exercise of any of the remedies permitted by applicable law
or provided herein.
13. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the
Secured Parties, and all obligations of the Pledgors hereunder,
shall be absolute and unconditional irrespective of:
7
<PAGE>
(a) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document or any other
agreement or instrument relating to any of the Secured
Obligations;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Secured
Obligations, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument
relating to any of the Secured Obligations;
(c) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for all or any of
the Secured Obligations; or
(d) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, the
Pledgors in respect of the Secured Obligations or of this
Agreement.
14. DEFINITIONS. All terms used herein unless otherwise
defined in the Credit Agreement shall be defined in accordance
with the appropriate definitions appearing in the Uniform
Commercial Code as in effect in Georgia, and such definitions are
hereby incorporated herein by reference and made a part hereof.
15. ENTIRE AGREEMENT; WAIVERS. This Agreement, together
with the Credit Agreement, the Guaranty Agreement and other Loan
Documents, constitutes and expresses the entire understanding
between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings,
inducements, commitments or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof
control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof. Neither this
Agreement nor any portion or provision hereof may be changed,
altered, modified, supplemented, discharged, canceled,
terminated, or amended orally or in any manner other than by an
agreement, in writing signed by the parties hereto. No waiver of
any provision of this Pledge Agreement nor consent to any
departure by any Pledgor herefrom shall in any event be effective
unless the same shall be in writing and signed by the Agent, and
then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is
given.
16. FURTHER ASSURANCES. Each Pledgor agrees at its own
expense to do such further acts and things, and to execute and
deliver such additional conveyances, assignments, financing
statements, agreements and instruments, as the Agent may at any
time reasonably request in connection with the administration or
enforcement of this Agreement or related to the Collateral or any
part thereof or in order better to assure and confirm unto the
Agent its rights, powers and remedies for the benefit of the
Lenders hereunder. Each Pledgor hereby consents and agrees that
the issuers of or obligors in respect of the Collateral shall be
entitled to accept the provisions hereof as conclusive evidence
of the right of the Agent, on behalf of the Lenders, to exercise
8
<PAGE>
its rights hereunder with respect to the Collateral,
notwithstanding any other notice or direction to the contrary
heretofore or hereafter given by the Pledgors or any other Person
to any of such issuers or obligors. The Agent may from time to
time, at its option, perform any act which any Pledgor agrees
hereunder to perform and which such Pledgor shall fail to perform
after being requested in writing to so perform and the Agent may
from time to time take any other action which the Agent
reasonably deems necessary for the maintenance, preservation or
protection of any of the Pledged Collateral or of the security
interest therein.
17. BINDING AGREEMENT; ASSIGNMENT. This Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and
inure to the benefit of the parties hereto, and to their
respective successors and assigns, except that no Pledgor shall
assign this Agreement or any interest herein or in the
Collateral, or any part thereof, or otherwise pledge, encumber or
grant any option with respect to the Collateral, or any part
thereof, or any cash or property held by the Agent as Collateral
under this Agreement. All references herein to the Agent shall
include any successor thereof, each Lender and any other obligees
from time to time of the Secured Obligations.
18. SWAP AGREEMENTS. All obligations of the Borrower under
Swap Agreements shall be deemed to be Secured Obligations secured
hereby, and each Lender or affiliate of a Lender party to any
such Swap Agreement shall be deemed to be a Secured Party
hereunder.
19. SEVERABILITY. In case any Lien, security interest or
other right of any Secured Party or any provision hereof shall be
held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien,
security interest or other right granted hereby or provision
hereof.
20. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and all the counterparts taken together
shall be deemed to constitute one and the same instrument.
21. EXPENSES; INDEMNIFICATION. Upon demand, each Pledgor
will pay to the Agent the amount of any and all expenses,
including the reasonable fees and disbursements of its counsel
and of any experts, which the Agent may incur in connection with
the administration of this Pledge Agreement or any instrument
relating hereto, the removal, custody, preservation, use or
operation of, or the sale of, collection from, or other
realization upon, any of the Collateral, the exercise or
enforcement of any of the rights of the Agent and the Secured
Parties with respect to Collateral, the failure by such Pledgor
to perform or observe any of the provisions hereof or the
advancement of any funds in connection with actions taken
pursuant to this Agreement. Without limitation of SECTION 12.9
of the Credit Agreement or any other indemnification provision in
any Loan Document, each Pledgor hereby jointly and severally
covenants and agrees to pay, indemnify, and hold the Secured
Parties harmless from and against any and all out-of-pocket
liabilities, costs, expenses or disbursements of any kind or
nature whatsoever arising in connection with any claim or
litigation by any Person resulting from the execution, delivery,
enforcement, performance and administration of this Agreement or
9
<PAGE>
the Loan Documents, or the transactions contemplated hereby or
thereby, or in any respect relating to the Collateral or any
transaction pursuant to which the Pledgor has incurred any
obligation (all the foregoing, collectively, the "indemnified
liabilities"); provided, however, that the Pledgor shall have no
obligation hereunder with respect to indemnified liabilities
resulting from the willful misconduct or gross negligence of the
Agent or any Lender. The agreements in this subsection shall
survive repayment of all Secured Obligations or termination or
expiration of this Agreement.
22. TERMINATION. This Agreement and all obligations of the
Pledgors hereunder shall terminate on the irrevocable payment in
full of the Secured Obligations, at which time the Liens and
rights granted to the Agent for the benefit of the Lenders
hereunder shall automatically terminate and no longer be in
effect, and the Collateral shall automatically be released from
the Liens created hereby. Upon such termination of this
Agreement, the Agent shall, at the sole expense of the Pledgors,
deliver to the Pledgors the certificates evidencing the Pledged
Stock (and any other property received as a dividend or
distribution or otherwise in respect of the Pledged Stock then in
its custody), together with any cash then constituting the
Collateral, not then sold or otherwise disposed of in accordance
with the provisions hereof and take such further actions as may
be necessary to effect the same and as shall be reasonably
acceptable to the Agent.
23. ADDITIONAL SHARES. If any Pledgor shall acquire or
hold (a) any additional shares of capital stock of any Pledged
Subsidiary or (b) any shares of capital stock of any Subsidiary
not listed on SCHEDULE I hereto which are required to be subject
to a Pledge Agreement pursuant to the terms of ARTICLE IV or any
other provision of the Credit Agreement (any such shares
described in clauses (a) or (b) above being referred to herein as
the "Additional Shares"), such Pledgor shall deliver to the Agent
for the benefit of the Lenders (i) a revised SCHEDULE I hereto
reflecting the ownership and pledge of such Additional Shares and
(ii) a Stock Pledge Agreement Supplement in the form of Exhibit A
hereto with respect to such Additional Shares duly completed and
signed by such Pledgor. Each Pledgor shall comply with the
requirements of this SECTION 23 concurrently with the acquisition
of any such Additional Shares in the case of shares described in
clause (a) above, and within the time period specified in ARTICLE
IV or elsewhere in the Credit Agreement with respect to shares
described in clause (b) above.
24. REMEDIES CUMULATIVE. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies
of the Agent provided by law or under the Credit Agreement, the
other Loan Documents, or other applicable agreements or
instruments. The making of the Loans to the Borrower pursuant to
the Credit Agreement, and the issuing of Letters of Credit for
the benefit of the Borrower, shall be conclusively presumed to
have been made or extended, respectively, in reliance upon the
Pledgor's grant of the Lien on the Collateral hereunder.
10<PAGE>
25. NOTICES. Any notice required or permitted hereunder
shall be given, (a) with respect to any Pledgor, care of the
Borrower at its address indicated in SECTION 12.2 of the Credit
Agreement and (b) with respect to the Agent or a Lender, at the
Agent's address indicated in SECTION 12.2 of the Credit Agreement.
All such notices shall be given and shall be effective as provided in
SECTION 12.2 of the Credit Agreement.
26. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
(b) EACH PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF HAMILTON,
STATE OF TENNESSEE, UNITED STATES OF AMERICA OR THE COUNTY
OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH PLEDGOR EXPRESSLY WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR
TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY,
ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND
THE PLEDGOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH PLEDGOR AGREES THAT SERVICE OF PROCESS MAY BE
MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE
PREPAID) TO THE ADDRESS OF THE BORROWER PROVIDED IN SECTION
12.2 OF THE CREDIT AGREEMENT, OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) or (b) HEREOF
SHALL PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE EACH PLEDGOR OR ANY OF SUCH PLEDGOR'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION
THEREWITH, EACH PLEDGOR AND THE AGENT ON BEHALF OF THE
LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION OR
PROCEEDING.
[Signature pages follow.]
12<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this
Stock Pledge Agreement on the day and year first written above.
PLEDGORS:
CENTURY HOLDINGS, INC.
CHAMPION CARRIER CORPORATION
MILLER INDUSTRIES INTERNATIONAL INC.
O'HARE TRUCK SERVICE, INC.
ROAD ONE, INC.
SOUTHERN WRECKER SALES, INC.
VULCAN INTERNATIONAL (DELAWARE), INC.
By: /s/ Jeffrey I. Badgley
Name: Jeffrey I. Badgley
Title: President
STOCK PLEDGE AGREEMENT
SIGNATURE PAGE 1 OF 2
<PAGE>
AGENT:
NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as Agent for the Lenders
By: /s/ Gregory E. Merriman
Name: Gregory E. Merriman
Title: Commercial Banking Officer
STOCK PLEDGE AGREEMENT
SIGNATURE PAGE 2 OF 2
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Name of Issuer Pledgor/ Class of Total Par Number Number of Certificate
Owner(s) Stock Number Value of Shares Shares No(s).
Pledged of Shares Per Issued and Pledged
Authorized Share Outstanding
---------------------------------------------------------------------------------------------------------------------
<S> <S> <S> <C> <C> <C> <C> <C>
Champion Century Common 3,000 $1.00 100 100 2
Carier Holdings,
Corporation Inc.
---------------------------------------------------------------------------------------------------------------------
Miller Financial Century Common 1,000 None 1,000 1,000 1
Services Group Holdings,
Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Miller Industries Century Preferred 100,000 $1.00 None None N/A
Towing Holdings, Common 3,000 None 3,000 3,000 4
Equipment Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Chicago Metro O'Hare Common 100,000 None 3,000 3,000 A-1
Services, Inc. Truck
Service, Inc.
---------------------------------------------------------------------------------------------------------------------
Team Towing O'Hare Common 1,000 None 100 100 5
and Recovery, Truck
Inc. Service, Inc.
---------------------------------------------------------------------------------------------------------------------
Cleveland Road One, Common 1,000 $0.01 100 100 1
Vehicle Inc.
Detention
Center, Inc.
---------------------------------------------------------------------------------------------------------------------
D.A. Haneline, Road One, Common 1,000 $0.01 100 100 1
Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Dollar Road One, Common 1,000 $0.01 100 100 1
Enterprises, Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Good Mechanic Road One, Common 1,000 $0.01 100 100 1
Auto Co. of Inc.
Richfield, Inc.
---------------------------------------------------------------------------------------------------------------------
Greg's Towing, Road One, Common 1,000 $0.01 100 100 1
Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Hendrickson Road One, Common 1,000 $0.01 100 100 1
Towing, Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Name of Issuer Pledgor/ Class of Total Par Number Number of Certificate
Owner(s) Stock Number Value of Shares Shares No(s).
Pledged of Shares Per Issued and Pledged
Authorized Share Outstanding
---------------------------------------------------------------------------------------------------------------------
<S> <S> <S> <C> <C> <C> <C> <C>
Murphy's Road One, Common 1,000 $0.01 100 100 1
Towing, Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Road One Road One, Common 1,000 $0.01 100 100 1
Insurance Inc.
Services, Inc.
---------------------------------------------------------------------------------------------------------------------
Truck Sales & Road One, Common 1,000 $0.01 100 100 1
Salvage Co., Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Vrchota Road One, Common 1,000 $0.01 100 100 1
Corporation Inc.
---------------------------------------------------------------------------------------------------------------------
Chevron Southern Common 100,000 $1.00 500 500 2
South/Southern Wrecker
Wrecker Sales, Inc.
Leasing, Inc.
---------------------------------------------------------------------------------------------------------------------
Vulcan Vulcan Common 150,000 $1.00 5,333.9098 5,333.9098 7
Equipment International 90,038.0434 90,038.0434 8
Company, Inc. (Delaware),
Inc.
---------------------------------------------------------------------------------------------------------------------
/TABLE
<PAGE>
EXHIBIT A
STOCK PLEDGE AGREEMENT SUPPLEMENT
THIS STOCK PLEDGE AGREEMENT SUPPLEMENT (this "
Supplement"), dated as of ______________, 199__ is made by and
between MILLER INDUSTRIES, INC., a Tennessee corporation (the
"Pledgor"), and NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, a
national banking association organized and existing under the
laws of the United States, as Agent (the "Agent") for each of the
financial institutions (the "Lenders") now or hereafter party to
the Credit Agreement dated as of January 30, 1998 among such
Lenders, the Agent, Miller Industries, Inc. and Miller Industries
Towing Equipment Inc. All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned
thereto in the Stock Pledge Agreement (as defined below).
WHEREAS, the Pledgor is a party to that certain Stock
Pledge Agreement dated as of January 30, 1998 by the Pledgor in
favor of the Agent for the benefit of the Lenders (the "Stock
Pledge Agreement"); and
WHEREAS, the Pledgor is required under the terms of the
Credit Agreement and the Stock Pledge Agreement to cause certain
shares of capital stock held by it and listed on Annex A to this
Supplement (the "Additional Shares") to become subject to the
Stock Pledge Agreement; and
WHEREAS, a material part of the consideration given in
connection with and as an inducement to the execution and
delivery of the Credit Agreement by the Secured Parties was
the obligation of the Pledgor to pledge to the Agent for the
benefit of the Lenders the Additional Shares, whether then owned
and not required to be subject to a pledge or subsequently
acquired or created; and
WHEREAS, the Secured parties have required the Pledgor
to pledge to the Agent for the benefit of the Lenders
all of the Additional Shares in accordance with the terms of the
Credit Agreement and the Stock Pledge Agreement;
NOW, THEREFORE, the Pledgor hereby agrees as follows with
the Agent, for the benefit of the Lenders:
1. The Pledgor hereby reaffirms and acknowledges the
pledge and collateral assignment to, and the grant of security
interest in, the Collateral contained in the Stock Pledge
Agreement and pledges and collaterally assigns to the Agent for
the benefit of the Lenders, and grants to the Agent for the
benefit of the Lenders a first priority lien and security
interest in, the Additional Shares and all of the following:
(a) all cash, securities, dividends, rights, and other
property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of
the Additional Shares, other than cash dividends permitted
to be retained by the Pledgor under SECTION 9 of the Stock
Pledge Agreement;
(b) all other property hereafter delivered to the
<PAGE>
Agent in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or
evidencing such property and all cash, securities, interest,
dividends, rights, and other property at any time and from
time to time declared or distributed in respect of or in
exchange for any or all of the Additional Shares; and
(c) all proceeds of any of the foregoing.
The Pledgor hereby acknowledges, agrees and confirms that, by its
execution of this Supplement, the Additional Shares constitute
"Pledged Stock" under and are subject to the Stock Pledge Agreement.
Each of the representations and warranties with respect to
Pledged Stock contained in the Stock Pledge Agreement is hereby made by
the Pledgor with respect to the Additional Shares. A revised
SCHEDULE I to the Stock Pledge Agreement reflecting the Additional
Shares and all other Pledged Stock, together with stock
certificates representing the Additional Shares with stock powers
duly executed in blank by the Pledgor, have been delivered
herewith to the Agent.
IN WITNESS WHEREOF, the Pledgor has caused this Supplement
to be duly executed by its authorized officer as of the day and
year first above written.
___________________________________
By:________________________________
Name:______________________________
Title:____________________________
Acknowledged and accepted:
NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION,
as Agent for the Lenders
By:________________________________
Name:______________________________
Title:_____________________________
<PAGE>
ANNEX A
Additional Shares
<TABLE>
<CAPTION>
Name of Pledged Class of Stock Total Number of Certificate Numbers
Subsidiary or Issuer -------------- Shares Pledged -------------------
- -------------------- ---------------
<S> <S> <C> <C>
</TABLE>
Promissory Note
(Revolving Loan)
$65,000,000 Charlotte, North Carolina
January 30, 1998
FOR VALUE RECEIVED, MILLER INDUSTRIES, INC., a Tennessee
corporation having its principal place of business located in
Ooltewah, Tennessee ("Miller") and MILLER INDUSTRIES TOWING
EQUIPMENT INC., a Delaware corporation having its principal place
of business located in Ooltewah, Tennessee ("Miller Towing")
(Miller and Miller Towing each are referred to as a "Borrower"
and collectively, the "Borrowers"), hereby promise to pay to the
order of NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION (the
"Lender"), in its individual capacity, at the office of
NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, as agent for the
Lenders (the "Agent"), located at One Independence Center, 101
North Tryon Street, NC1-001-15-04, Charlotte, North Carolina
28255 (or at such other place or places as the Agent may
designate in writing) at the times set forth in the Credit
Agreement dated as of January 30, 1998 among the Borrowers, the
financial institutions party thereto (collectively, the
"Lenders") and the Agent (as amended, supplemented or restated
and in effect from time to time, the "Agreement"; all capitalized
terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the
United States of America in immediately available funds, the
principal amount of SIXTY-FIVE MILLION AND NO/100 DOLLARS
($65,000,000) or, if less than such principal amount, the
aggregate unpaid principal amount of all Loans made by the Lender
to the Borrowers pursuant to the Agreement on the Revolving
Credit Termination Date or such earlier date as may be required
pursuant to the terms of the Agreement, and to pay interest from
the date hereof on the unpaid principal amount hereof, in like
money, at said office, on the dates and at the rates provided in
ARTICLE II of the Agreement. All or any portion of the principal
amount of Loans may be prepaid or required to be prepaid as
provided in the Agreement.
Each Borrower shall be jointly and severally liable as a
primary obligor.
If payment of all sums due hereunder is accelerated under
the terms of the Agreement or under the terms of the other Loan
Documents executed in connection with the Agreement, the then
remaining principal amount and accrued but unpaid interest
thereafter shall bear interest which shall be payable on demand
at the rates per annum set forth in the proviso to SECTION 2.2(a)
of the Agreement or the maximum rate permitted under applicable
law, if lower, until such principal and interest have been paid
in full. Further, in the event of such acceleration, this Note
shall become immediately due and payable, without presentation,
demand, protest or notice of any kind, all of which are hereby
waived by the Borrowers.
In the event any amount evidenced by this Note is not paid
when due at any stated or accelerated maturity, the Borrowers
agree to pay, in addition to the principal and interest, all
costs of collection, including reasonable attorneys' fees and
disbursements, and interest due hereunder thereon at the rates
set forth above.
<PAGE>
Interest hereunder shall be computed as provided in the
Agreement.
This Note is one of the Notes referred to in the Agreement
and is issued pursuant to and entitled to the benefits and
security of the Agreement to which reference is hereby made for a
more complete statement of the terms and conditions upon which
the Loans evidenced hereby were or are made and are to be repaid.
This Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or
secondarily liable as principals, sureties, guarantors, endorsers
or otherwise, hereby waive to the full extent permitted by law
the benefits of all provisions of law for stay or delay of
execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment
be obtained and execution issued against any other of them and
returned satisfied or until it can be shown that the maker or any
other party hereto had no property available for the satisfaction
of the debt evidenced by this instrument, or until any other
proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this
Note any collateral deposited by any of said Persons as security.
Protest, notice of protest, notice of dishonor, dishonor, demand
or any other formality are hereby waived by all parties bound
hereon.
This Note shall be governed by and construed in accordance
with the law of the State of Georgia.
2<PAGE>
IN WITNESS WHEREOF, each of the Borrowers has caused this
Note to be made, executed and delivered by its duly authorized
representative as of the date and year first above written, all
pursuant to authority duly granted.
MILLER INDUSTRIES, INC.
ATTEST:
By: /s/ Jeffrey Badgley
/s/ Frank Madonia Name: Jeffrey Badgley
_______ Secretary Title: President
(SEAL)
MILLER INDUSTRIES TOWING
EQUIPMENT INC.
ATTEST:
By: /s/ Adam Dunayer
/s/ Frank Madonia Name: Adam Dunayer
_______ Secretary Title: Vice President
(SEAL)
Promissory Note
(Revolving Loan)
$42,500,000 Charlotte, North Carolina
January 30, 1998
FOR VALUE RECEIVED, MILLER INDUSTRIES, INC., a Tennessee
corporation having its principal place of business located in
Ooltewah, Tennessee ("Miller") and MILLER INDUSTRIES TOWING
EQUIPMENT INC., a Delaware corporation having its principal place
of business located in Ooltewah, Tennessee ("Miller Towing")
(Miller and Miller Towing each are referred to as a "Borrower"
and collectively, the "Borrowers"), hereby promise to pay to the
order of BANK OF AMERICA, FIB (the "Lender"), in its individual
capacity, at the office of NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as agent for the Lenders (the "Agent"), located at
One Independence Center, 101 North Tryon Street, NC1-001-15-04,
Charlotte, North Carolina 28255 (or at such other place or places
as the Agent may designate in writing) at the times set forth in
the Credit Agreement dated as of January 30, 1998 among the
Borrowers, the financial institutions party thereto
(collectively, the "Lenders") and the Agent (as amended,
supplemented or restated and in effect from time to time, the
"Agreement"; all capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Agreement),
in lawful money of the United States of America in immediately
available funds, the principal amount of FORTY-TWO MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($42,500,000) or, if less
than such principal amount, the aggregate unpaid principal amount
of all Loans made by the Lender to the Borrowers pursuant to the
Agreement on the Revolving Credit Termination Date or such
earlier date as may be required pursuant to the terms of the
Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the
dates and at the rates provided in ARTICLE II of the Agreement.
All or any portion of the principal amount of Loans may be
prepaid or required to be prepaid as provided in the Agreement.
Each Borrower shall be jointly and severally liable as a
primary obligor.
If payment of all sums due hereunder is accelerated under
the terms of the Agreement or under the terms of the other Loan
Documents executed in connection with the Agreement, the then
remaining principal amount and accrued but unpaid interest
thereafter shall bear interest which shall be payable on demand
at the rates per annum set forth in the proviso to SECTION 2.2(a)
of the Agreement or the maximum rate permitted under applicable
law, if lower, until such principal and interest have been paid
in full. Further, in the event of such acceleration, this Note
shall become immediately due and payable, without presentation,
demand, protest or notice of any kind, all of which are hereby
waived by the Borrowers.
In the event any amount evidenced by this Note is not paid
when due at any stated or accelerated maturity, the Borrowers
agree to pay, in addition to the principal and interest, all
costs of collection, including reasonable attorneys' fees and
disbursements, and interest due hereunder thereon at the rates
set forth above.
Interest hereunder shall be computed as provided in the
Agreement.
<PAGE>
This Note is one of the Notes referred to in the Agreement
and is issued pursuant to and entitled to the benefits and
security of the Agreement to which reference is hereby made for a
more complete statement of the terms and conditions upon which
the Loans evidenced hereby were or are made and are to be repaid.
This Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or
secondarily liable as principals, sureties, guarantors, endorsers
or otherwise, hereby waive to the full extent permitted by law
the benefits of all provisions of law for stay or delay of
execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment
be obtained and execution issued against any other of them and
returned satisfied or until it can be shown that the maker or any
other party hereto had no property available for the satisfaction
of the debt evidenced by this instrument, or until any other
proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this
Note any collateral deposited by any of said Persons as security.
Protest, notice of protest, notice of dishonor, dishonor, demand
or any other formality are hereby waived by all parties bound
hereon.
This Note shall be governed by and construed in accordance
with the law of the State of Georgia.
2<PAGE>
IN WITNESS WHEREOF, each of the Borrowers has caused this
Note to be made, executed and delivered by its duly authorized
representative as of the date and year first above written, all
pursuant to authority duly granted.
MILLER INDUSTRIES, INC.
ATTEST:
By: /s/ Jeffrey Badgley
/s/ Frank Madonia Name: Jeffrey Badgley
_______ Secretary Title: President
(SEAL)
MILLER INDUSTRIES TOWING
EQUIPMENT INC.
ATTEST:
By: /s/ Adam Dunayer
/s/ Frank Madonia Name: Adam Dunayer
_______ Secretary Title: Vice President
(SEAL)
Promissory Note
(Revolving Loan)
$30,000,000 Charlotte, North Carolina
January 30, 1998
FOR VALUE RECEIVED, MILLER INDUSTRIES, INC., a Tennessee
corporation having its principal place of business located in
Ooltewah, Tennessee ("Miller") and MILLER INDUSTRIES TOWING
EQUIPMENT INC., a Delaware corporation having its principal place
of business located in Ooltewah, Tennessee ("Miller Towing")
(Miller and Miller Towing each are referred to as a "Borrower"
and collectively, the "Borrowers"), hereby promise to pay to the
order of WACHOVIA BANK, N.A. (the "Lender"), in its individual
capacity, at the office of NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as agent for the Lenders (the "Agent"), located at
One Independence Center, 101 North Tryon Street, NC1-001-15-04,
Charlotte, North Carolina 28255 (or at such other place or places
as the Agent may designate in writing) at the times set forth in
the Credit Agreement dated as of January 30, 1998 among the
Borrowers, the financial institutions party thereto
(collectively, the "Lenders") and the Agent (as amended,
supplemented or restated and in effect from time to time, the
"Agreement"; all capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Agreement),
in lawful money of the United States of America in immediately
available funds, the principal amount of THIRTY MILLION AND
NO/100 DOLLARS ($30,000,000) or, if less than such principal
amount, the aggregate unpaid principal amount of all Loans made
by the Lender to the Borrowers pursuant to the Agreement on the
Revolving Credit Termination Date or such earlier date as may be
required pursuant to the terms of the Agreement, and to pay
interest from the date hereof on the unpaid principal amount
hereof, in like money, at said office, on the dates and at the
rates provided in ARTICLE II of the Agreement. All or any
portion of the principal amount of Loans may be prepaid or
required to be prepaid as provided in the Agreement.
Each Borrower shall be jointly and severally liable as a
primary obligor.
If payment of all sums due hereunder is accelerated under
the terms of the Agreement or under the terms of the other Loan
Documents executed in connection with the Agreement, the then
remaining principal amount and accrued but unpaid interest
thereafter shall bear interest which shall be payable on demand
at the rates per annum set forth in the proviso to SECTION 2.2(a)
of the Agreement or the maximum rate permitted under applicable
law, if lower, until such principal and interest have been paid
in full. Further, in the event of such acceleration, this Note
shall become immediately due and payable, without presentation,
demand, protest or notice of any kind, all of which are hereby
waived by the Borrowers.
In the event any amount evidenced by this Note is not paid
when due at any stated or accelerated maturity, the Borrowers
agree to pay, in addition to the principal and interest, all
costs of collection, including reasonable attorneys' fees and
disbursements, and interest due hereunder thereon at the rates
set forth above.
Interest hereunder shall be computed as provided in the
Agreement.
<PAGE>
This Note is one of the Notes referred to in the Agreement
and is issued pursuant to and entitled to the benefits and
security of the Agreement to which reference is hereby made for a
more complete statement of the terms and conditions upon which
the Loans evidenced hereby were or are made and are to be repaid.
This Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or
secondarily liable as principals, sureties, guarantors, endorsers
or otherwise, hereby waive to the full extent permitted by law
the benefits of all provisions of law for stay or delay of
execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment
be obtained and execution issued against any other of them and
returned satisfied or until it can be shown that the maker or any
other party hereto had no property available for the satisfaction
of the debt evidenced by this instrument, or until any other
proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this
Note any collateral deposited by any of said Persons as security.
Protest, notice of protest, notice of dishonor, dishonor, demand
or any other formality are hereby waived by all parties bound
hereon.
This Note shall be governed by and construed in accordance
with the law of the State of Georgia.
2
<PAGE>
IN WITNESS WHEREOF, each of the Borrowers has caused this
Note to be made, executed and delivered by its duly authorized
representative as of the date and year first above written, all
pursuant to authority duly granted.
MILLER INDUSTRIES, INC.
ATTEST:
By: /s/ Jeffrey Badgley
/s/ Frank Madonia Name: Jeffrey Badgley
_______ Secretary Title: President
(SEAL)
MILLER INDUSTRIES TOWING
EQUIPMENT INC.
ATTEST:
By: /s/ Adam Dunayer
/s/ Frank Madonia Name: Adam Dunayer
_______ Secretary Title: Vice President
(SEAL)
Promissory Note
(Revolving Loan)
$12,500,000 Charlotte, North Carolina
January 30, 1998
FOR VALUE RECEIVED, MILLER INDUSTRIES, INC., a Tennessee
corporation having its principal place of business located in
Ooltewah, Tennessee ("Miller") and MILLER INDUSTRIES TOWING
EQUIPMENT INC., a Delaware corporation having its principal place
of business located in Ooltewah, Tennessee ("Miller Towing")
(Miller and Miller Towing each are referred to as a "Borrower"
and collectively, the "Borrowers"), hereby promise to pay to the
order of FIRST AMERICAN NATIONAL BANK (the "Lender"), in its
individual capacity, at the office of NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION, as agent for the Lenders (the "Agent"),
located at One Independence Center, 101 North Tryon Street, NC1-
001-15-04, Charlotte, North Carolina 28255 (or at such other
place or places as the Agent may designate in writing) at the
times set forth in the Credit Agreement dated as of January 30,
1998 among the Borrowers, the financial institutions party
thereto (collectively, the "Lenders") and the Agent (as amended,
supplemented or restated and in effect from time to time, the
"Agreement"; all capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Agreement),
in lawful money of the United States of America in immediately
available funds, the principal amount of TWELVE MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($12,500,000) or, if less
than such principal amount, the aggregate unpaid principal amount
of all Loans made by the Lender to the Borrowers pursuant to the
Agreement on the Revolving Credit Termination Date or such
earlier date as may be required pursuant to the terms of the
Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the
dates and at the rates provided in ARTICLE II of the Agreement.
All or any portion of the principal amount of Loans may be
prepaid or required to be prepaid as provided in the Agreement.
Each Borrower shall be jointly and severally liable as a
primary obligor.
If payment of all sums due hereunder is accelerated under
the terms of the Agreement or under the terms of the other Loan
Documents executed in connection with the Agreement, the then
remaining principal amount and accrued but unpaid interest
thereafter shall bear interest which shall be payable on demand
at the rates per annum set forth in the proviso to SECTION 2.2(a)
of the Agreement or the maximum rate permitted under applicable
law, if lower, until such principal and interest have been paid
in full. Further, in the event of such acceleration, this Note
shall become immediately due and payable, without presentation,
demand, protest or notice of any kind, all of which are hereby
waived by the Borrowers.
In the event any amount evidenced by this Note is not paid
when due at any stated or accelerated maturity, the Borrowers
agree to pay, in addition to the principal and interest, all
costs of collection, including reasonable attorneys' fees and
disbursements, and interest due hereunder thereon at the rates
set forth above.
Interest hereunder shall be computed as provided in the
Agreement.
<PAGE>
This Note is one of the Notes referred to in the Agreement
and is issued pursuant to and entitled to the benefits and
security of the Agreement to which reference is hereby made for a
more complete statement of the terms and conditions upon which
the Loans evidenced hereby were or are made and are to be repaid.
This Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or
secondarily liable as principals, sureties, guarantors, endorsers
or otherwise, hereby waive to the full extent permitted by law
the benefits of all provisions of law for stay or delay of
execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment
be obtained and execution issued against any other of them and
returned satisfied or until it can be shown that the maker or any
other party hereto had no property available for the satisfaction
of the debt evidenced by this instrument, or until any other
proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this
Note any collateral deposited by any of said Persons as security.
Protest, notice of protest, notice of dishonor, dishonor, demand
or any other formality are hereby waived by all parties bound
hereon.
This Note shall be governed by and construed in accordance
with the law of the State of Georgia.
2<PAGE>
IN WITNESS WHEREOF, each of the Borrowers has caused this
Note to be made, executed and delivered by its duly authorized
representative as of the date and year first above written, all
pursuant to authority duly granted.
MILLER INDUSTRIES, INC.
ATTEST:
By: /s/ Jeffrey Badgley
/s/ Frank Madonia Name: Jeffrey Badgley
_______ Secretary Title: President
(SEAL)
MILLER INDUSTRIES TOWING
EQUIPMENT INC.
ATTEST:
By: /s/ Adam Dunayer
/s/ Frank Madonia Name: Adam Dunayer
_______ Secretary Title: Vice President
(SEAL)
Promissory Note
(Swing Line Loan)
$5,000,000 Charlotte, North Carolina
January 30, 1998
FOR VALUE RECEIVED, MILLER INDUSTRIES, INC., a Tennessee
corporation having its principal place of business located in
Ooltewah, Tennessee ("Miller") and MILLER INDUSTRIES TOWING
EQUIPMENT INC., a Delaware corporation having its principal place
of business located in Ooltewah, Tennessee ("Miller Towing")
(Miller and Miller Towing each are referred to as a "Borrower"
and collectively, the "Borrowers"), hereby promise to pay to the
order of NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION (the
"Swing Line Lender"), in its individual capacity, at the office
of NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, as agent for
the Swing Line Lender (the "Agent"), located at One Independence
Center, 101 North Tryon Street, NC1-001-15-04, Charlotte, North
Carolina 28255 (or at such other place or places as the Agent may
designate in writing) at the times set forth in the Credit
Agreement dated as of January 30, 1998 among the Borrowers, the
financial institutions party thereto (collectively, the
"Lenders") and the Agent (as amended, supplemented or restated
and in effect from time to time, the "Agreement"; all capitalized
terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the
United States of America, in immediately available funds, the
principal amount of FIVE MILLION AND NO/100 DOLLARS ($5,000,000)
or, if less than such principal amount, the aggregate unpaid
principal amount of all Swing Line Loans made by the Swing Line
Lender to the Borrowers pursuant to the Agreement on the
Revolving Credit Termination Date or such earlier date as may be
required pursuant to the terms of the Agreement, and to pay
interest from the date hereof on the unpaid principal amount
hereof, in like money, at said office, on the dates and at the
rates provided in ARTICLE II of the Agreement. All or any
portion of the principal amount of Swing Line Loans may be
prepaid or required to be prepaid as provided in the Agreement.
Each Borrower shall be jointly and severally liable as a
primary obligor.
If payment of all sums due hereunder is accelerated under
the terms of the Agreement or under the terms of the other Loan
Documents executed in connection with the Agreement, the then
remaining principal amount and accrued but unpaid interest
thereafter shall bear interest which shall be payable on demand
at the rates per annum set forth in the proviso to SECTION 2.2(a)
of the Agreement or the maximum rate permitted under applicable
law, if lower, until such principal and interest have been paid
in full. Further, in the event of such acceleration, this Swing
Line Note shall become immediately due and payable, without
presentation, demand, protest or notice of any kind, all of which
are hereby waived by the Borrowers.
In the event any amount evidenced by this Swing Line Note is
not paid when due at any stated or accelerated maturity, the
Borrowers agree to pay, in addition to the principal and
interest, all costs of collection, including reasonable
attorneys' fees, and interest due hereunder thereon at the rates
set forth above.
<PAGE>
Interest hereunder shall be computed as provided in the
Agreement.
This Note is the Swing Line Note referred to in the
Agreement and is issued pursuant to and entitled to the benefits
and security of the Agreement to which reference is hereby made
for a more complete statement of the terms and conditions upon
which the Swing Line Loans evidenced hereby were or are made and
are to be repaid. This Note is subject to certain restrictions
on transfer or assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or
secondarily liable as principals, sureties, guarantors, endorsers
or otherwise, hereby waive to the full extent permitted by law
the benefits of all provisions of law for stay or delay of
execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment
be obtained and execution issued against any other of them and
returned satisfied or until it can be shown that the maker or any
other party hereto had no property available for the satisfaction
of the debt evidenced by this instrument, or until any other
proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this
Swing Line Note any collateral deposited by any of said Persons
as security. Protest, notice of protest, notice of dishonor,
dishonor, demand or any other formality are hereby waived by all
parties bound hereon.
This Swing Line Note shall be governed by and construed in
accordance with the law of the State of Georgia.
2<PAGE>
IN WITNESS WHEREOF, each of the Borrowers has caused this
Swing Line Note to be made, executed and delivered by its duly
authorized representative as of the date and year first above
written, all pursuant to authority duly granted.
MILLER INDUSTRIES, INC.
ATTEST:
By: /s/ Jeffrey Badgley
/s/ Frank Madonia Name: Jeffrey Badgley
_______ Secretary Title: President
(SEAL)
MILLER INDUSTRIES TOWING
EQUIPMENT INC.
ATTEST:
By: /s/ Adam Dunayer
/s/ Frank Madonia Name: Adam Dunayer
_______ Secretary Title: Vice President
(SEAL)
LC ACCOUNT AGREEMENT
THIS LC ACCOUNT AGREEMENT (the "Agreement") is made and
entered into as of this 30th day of January, 1998 by and between
MILLER INDUSTRIES, INC., a Tennessee corporation ("Miller"),
MILLER INDUSTRIES TOWING EQUIPMENT INC., a Delaware corporation
("Miller Towing," and together with Miller, the "Pledgors" or the
"Borrower"), and NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION,
a national banking association organized and existing under the
laws of the United States, as Agent (the "Agent") for each of the
financial institutions (the "Lenders," including any Lender in
its capacity as Issuing Bank, and collectively with the Agent,
the "Secured Parties") now or hereafter party to the Credit
Agreement (as defined below). All capitalized terms used but not
otherwise defined herein shall have the respective meanings
assigned thereto in either or both of the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to the
Borrower a certain revolving credit facility with a letter of
credit sublimit and a swingline sublimit pursuant to the Credit
Agreement dated as of January 30, 1998 among the Borrower, the
Agent and the Lenders (as from time to time amended, revised,
modified, supplemented, or amended and restated the "Credit
Agreement"); and
WHEREAS, as a condition precedent to the Lenders'
obligations to make the Loans or to issue Letters of Credit, the
Pledgors are required to execute and deliver to the Agent a copy
of this Agreement on or before the Effective Time (as defined
herein);
WHEREAS, the Secured Parties are unwilling to enter into the
Loan Documents unless the Pledgors enter into this Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to
enter into the Loan Documents and to make Loans and issue Letters
of Credit and in consideration of the premises and the mutual
agreements, provisions and covenants contained herein, the
Pledgors and the Agent hereby agree as follows:
1. DEFINITIONS. The following capitalized terms used in
this Agreement shall have the following meanings notwithstanding
any definition thereof in the Credit Agreement. Other
capitalized terms used but not defined herein shall have the
meanings therefor set forth in the Credit Agreement.
"Collateral" means (a) all funds from time to time on
deposit in the LC Account; (b) all Investments and all
certificates and instruments from time to time representing or
evidencing such Investments; (c) all notes, certificates of
deposit, checks and other instruments from time to time hereafter
delivered to or otherwise possessed by the Agent for or on behalf
of the Pledgors in substitution for or in addition to any or all
of the Collateral described in clause (a) or (b) above; (d) all
interest, dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Collateral
described in clause (a), (b) or (c) above; and (e) to the extent
not covered by clauses (a) through (d) above, all proceeds of any
or all of the foregoing Collateral.
<PAGE>
"Effective Time" means the Closing Date as defined in the
Credit Agreement.
"Investments" means those investments, if any, made by the
Agent pursuant to SECTION 5 hereof.
"LC Account" means the cash collateral account established
and maintained pursuant to SECTION 2 hereof.
"Secured Obligations" means (i) all Obligations of the
Pledgors now existing or hereafter arising under or in respect of
the Credit Agreement or the Notes (including, without limitation,
the Pledgors' obligation to pay principal and interest and all
other charges, fees, expenses, commissions, reimbursements,
indemnities and other payments related to or in respect of the
obligations contained in the Credit Agreement or the Notes) or
any documents or agreement related to the Credit Agreement or the
Notes; and (ii) without duplication, all obligations of the
Pledgors now or hereafter existing under or in respect of this
Agreement, including, without limitation, with respect to all
charges, fees, expenses, commissions, reimbursements, indemnities
and other payments related to or in respect of the obligations
contained in this Agreement.
2. LC ACCOUNT; CASH COLLATERALIZATION OF LETTERS OF
CREDIT.
(i) At any time, in the Agent's sole discretion, the
Agent shall establish and maintain at its offices at 100
North Tryon Street, Charlotte, North Carolina, in the name
of the Agent and under the sole dominion and control of the
Agent, a cash collateral account designated as Miller
Industries, Inc. Cash LC Account (the "LC Account").
(ii) (A) In accordance with ARTICLE X of the
Credit Agreement, in the event that an Event of Default has
occurred and is continuing and Pledgors are required to
deposit with the Agent an amount equal to the maximum amount
remaining undrawn or unpaid under the Letters of Credit, or
(B) as otherwise agreed by the parties hereto to provide
cash collateral for the undrawn amount of any Letter of
Credit other than after the occurrence and during the
continuation of an Event of Default, the Agent shall, upon
receipt of any such amounts, deposit such amounts into the
LC Account to be held pursuant to the terms of this
Agreement. Upon a drawing under the Letters of Credit in
respect of which any amounts described above have been
deposited in the LC Account, the Agent shall apply such
amounts to reimburse the Issuing Bank for the amount of such
drawing. In the event the Letters of Credit are canceled or
expire or in the event of any reduction in the maximum
amount available at any time for drawing under such Letters
of Credit (the "Maximum Available Amount"), the Agent shall
apply the amount then in the LC Account less the Maximum
Available Amount immediately after such cancellation,
expiration or reduction, first, to the cash
collateralization of the Letters of Credit if the Pledgors
have failed to pay all or a portion of the maximum amounts
described in the first sentence of this clause (ii), and
second, to the payment in full of the outstanding Secured
Obligations and third, the balance, if any, to the Pledgors
or as otherwise required by law.
2<PAGE>
(iii) The Agent is hereby authorized to sell, and
shall sell, all or any designated part of the Collateral (A)
so long as no Default or Event of Default shall have
occurred and be continuing, upon the receipt of appropriate
written instructions from Pledgors, or (B) in any event if
such sale is necessary to permit the Agent to perform its
duties hereunder or under the Credit Agreement. The Agent
shall have no responsibility and the Pledgors hereby agree
to hold the Agent and the Lenders harmless for any loss in
the value of the Collateral resulting from a fluctuation in
interest rates or otherwise. The net proceeds of the sale
or payment of any such investment shall constitute part of
the Collateral and be held in the LC Account by the Agent.
3. PLEDGE; SECURITY FOR SECURED OBLIGATIONS. The Pledgors
hereby grant and pledge to the Agent, for itself and on behalf of
the Secured Parties, a first priority lien and security interest
in the Collateral now existing or hereafter arising or acquired,
as collateral security for the prompt payment in full when due,
whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and
other amounts which would accrue and become due but for the
filing of a petition in bankruptcy or the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code), of
all Secured Obligations.
4. DELIVERY OF COLLATERAL. All certificates or
instruments, if any, representing or evidencing the Collateral
shall be delivered to the Agent for the benefit of the Secured
Parties in the form of immediately available funds.
5. INVESTING OF AMOUNTS IN THE LC ACCOUNT; AMOUNTS HELD BY
THE AGENT. Cash held by the Agent in the LC Account shall not be
invested or reinvested except as provided in this SECTION 5.
(i) Except as otherwise provided in SECTION 12 hereof
and provided that the lien and security interest in favor of
the Agent for the benefit of the Secured Parties remains
perfected and so long as no Event of Default shall have
occurred and be continuing, any funds on deposit in the LC
Account may, or upon the written request of Pledgors shall,
be invested by the Agent in cash equivalents.
(ii) The Agent shall have no responsibility and
the Pledgors hereby agree to hold the Agent and the Lenders
harmless for any loss in the value of the Collateral
resulting from a fluctuation in interest rates or otherwise.
Any interest on Investments permitted hereunder and the net
proceeds of the sale or payment of any such Investments
shall constitute part of the Collateral and be held in the
LC Account by the Agent.
6. REPRESENTATIONS AND WARRANTIES. In addition to its
representations and warranties made pursuant to ARTICLE VII of
the Credit Agreement, the Pledgors represent and warrant to the
Agent (for itself and as agent on behalf of the Secured Parties),
that the following statements are true, correct and complete:
(i) At the time the Pledgors deliver the Collateral
(or any portion thereof) to the Agent, the Pledgors will be
the legal and beneficial owner of the Collateral free and
clear of any Lien except for the lien and security interest
created by this Agreement; and
3<PAGE>
(ii) At the time the LC Account has been created and
the Collateral deposited into the LC Account, the pledge and
assignment of the Collateral pursuant to this Agreement
creates a valid and perfected first priority security
interest in the Collateral, securing the payment of the
Secured Obligations.
7. FURTHER ASSURANCES. The Pledgors agree that at any
time and from time to time, at the Pledgors' expense, the
Pledgors will promptly execute and deliver to the Agent any
further instruments and documents, and take any further actions,
that may be necessary or that the Agent may reasonably request in
order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Agent to exercise
and enforce its rights and remedies hereunder with respect to any
Collateral.
8. TRANSFERS AND OTHER LIENS. Each of the Pledgors agree
that it will not (a) sell or otherwise dispose of any of the
Collateral, or (b) create or permit to exist any Lien upon or
with respect to any of the Collateral, except for the Lien and
security interest created by this Agreement and the Credit
Agreement.
9. THE AGENT APPOINTED ATTORNEY-IN FACT. Pledgors
hereby appoint the Agent as their attorney-in-fact for the
purposes of carrying out the provisions of this Agreement and
taking any action and executing any instrument which the Agent
may deem necessary or advisable to accomplish the purposes
hereof, which appointment is coupled with an interest and is
irrevocable; provided, that the Agent shall have and may exercise
rights under this power of attorney only upon the occurrence and
during the continuance of an Event of Default. Without limiting
the generality of the foregoing, upon the occurrence and during
the continuation of an Event of Default, the Agent shall have the
power to receive, endorse and collect all instruments made
payable to the Pledgors representing any payment, dividend or
other distribution in respect of the Collateral or any part
thereof and to give full discharge for the same. In performing
its functions and duties under this Agreement, the Agent shall
act solely for itself and as the agent of the Lenders and the
Agent has not assumed nor shall be deemed to have assumed any
obligation towards or relationship of agency or trust with or for
the Pledgors.
10. THE AGENT MAY PERFORM. If Pledgors fail to perform any
agreement contained herein, after notice to Pledgors, the Agent
may itself perform, or cause performance of, such agreement, and
the expenses of the Agent incurred in connection therewith shall
be payable by Pledgors under SECTION 13 hereof.
11. STANDARD OF CARE; NO RESPONSIBILITY FOR CERTAIN
MATTERS. In dealing with the Collateral in its possession, the
Agent shall exercise the same care which it would exercise in
dealing with similar collateral property pledged by others in
transactions of a similar nature, but it shall not be responsible
for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters
relative to any Collateral, whether or not the Agent has or is
deemed to have knowledge of such matters, (b) taking any steps to
preserve rights against any parties with respect to any
Collateral (other than steps taken in accordance with the
standard of care set forth above to maintain possession of the
4<PAGE>
Collateral), (c) the collection of any proceeds, (d) any loss
resulting from Investments made pursuant to SECTION 5 hereof, or
(e) determining (x) the correctness of any statement or
calculation made by the Pledgors in any written instructions, or
(y) whether any deposit in the LC Account is proper.
12. REMEDIES UPON ACCELERATION; APPLICATION OF PROCEEDS.
If the Borrower shall fail to perform any action required
hereunder or shall otherwise breach any term or provision hereof
(a "Default" hereunder) which Default shall not have been waived
in accordance with SECTION 12.6 of the Credit Agreement:
(i) The Agent may and shall at the request of the
Required Lenders or the Issuing Bank exercise in respect of
the Collateral, in addition to other rights and remedies
provided for herein otherwise available to it, all the
rights and remedies of a secured party on default under the
Uniform Commercial Code (the "Code") as applicable to the
Collateral, and the Agent may, without notice except as
specified below, sell the Collateral or any part thereof in
one or more parcels at public or private sale, at any
exchange or broker's board or at any of the Agent's offices
or elsewhere, for cash, on credit or for future delivery,
and at such price or prices, and upon such other terms as
the Agent may deem commercially reasonable. Pledgors agree
that, to the extent notice of sale shall be required by law,
at least ten (10) days' notice to Pledgors of the time and
place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification.
The Agent shall not be obligated to make any sale of the
Collateral regardless of notice of sale having been given.
The Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made
at the time and place to which it was so adjourned.
(ii) In addition to the remedies set forth in part (i)
above and subject to the provisions of SECTION 2(ii)
hereof, any cash held by the Agent as Collateral and all
cash proceeds received by the Agent in respect of any sale
of, collection from, or other realization upon all or part
of the Collateral shall be applied (after payment of any
amounts payable to the Agent pursuant to SECTION 13 hereof)
by the Agent to pay the Secured Obligations pursuant to
SECTION 10.5 of the Credit Agreement.
13. EXPENSES. In addition to any payments of expenses of
the Agent pursuant to the Credit Agreement or the other Loan
Documents, the Pledgors agree to pay promptly to the Agent all
the costs and expenses, including reasonable attorneys fees and
expenses, which the Agent may incur in connection with (a) the
custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (b) the exercise
or enforcement of any of the rights of the Agent hereunder, or
(c) the failure by the Pledgors to perform or observe any of the
provisions hereof.
14. NO DELAYS; WAIVER, ETC. No delay or failure on the
part of the Agent in exercising, and no course of dealing with
respect to, any power or right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the
Agent of any power or right hereunder preclude other or further
exercise thereof or the exercise of any other power or right.
5<PAGE>
15. AMENDMENTS, ETC. No amendment, modification,
termination or waiver of any provision of this Agreement, or
consent to any departure by the Pledgors therefrom, shall in any
event be effective without the written concurrence of the Agent.
16. CONTINUING SECURITY INTEREST; TERMINATION. This
Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until
all Secured Obligations (other than Secured Obligations in the
nature of continuing indemnities or expense reimbursement
obligations not yet due and payable) shall have been indefeasibly
paid in full in cash, the commitments or other obligations of the
Agent or any Lender to make any Loan under the Credit Agreement
shall have expired, the Letters of Credit shall have expired and
the Revolving Credit Termination Date shall have occurred, (b) be
binding upon each of the Pledgors, its successors and assigns,
and (c) inure to the benefit of the Agent, the Secured Parties
and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c) and
subject to the provisions of the Credit Agreement, any Lender may
assign or otherwise transfer any Note held by it to any other
person or entity, and such other person or entity shall thereupon
become vested with all the benefits in respect thereof granted to
such Lender herein or otherwise. Upon the indefeasible payment
in full in cash of the Secured Obligations (other than Secured
Obligations in the nature of continuing indemnities or expense
reimbursement obligations not yet due and payable), and the
cancellation or expiration of the Letters of Credit and
termination or expiration of all commitments and other
obligations of the Agent and any Lender to make any Loan and the
occurrence of the Revolving Credit Termination Date, Pledgors
shall be entitled, subject to the provisions of SECTION 12
hereof, to the return, upon its request and at its expense, of
such of the Collateral as shall not have been sold or otherwise
applied pursuant to the terms hereof.
17. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party and
all covenants, promises, and agreements by or on behalf of the
Pledgors or by and on behalf of the Agent shall bind and inure to
the benefit of the successors and assigns of the Pledgors, the
Agent and the Lenders.
18. ANTI-MARSHALLING PROVISIONS. The right is hereby given
by the Pledgors to the Agent, for the benefit of the Secured
Parties, to make releases (whether in whole or in part) of all or
any part of the Collateral agreeable to the Agent without notice
to, or the consent, approval or agreement of other parties and
interests, including junior lienors, which releases shall not
impair in any manner the validity of or priority of the Liens and
security interests in the remaining Collateral conferred under
such documents, nor release the Pledgors from personal liability
for the Secured Obligations hereby secured. Notwithstanding the
existence of any other security interest in the Collateral held
by the Agent, for the benefit of the Secured Parties, the Agent
shall have the right to determine the order in which any or all
of the Collateral shall be subjected to the remedies provided in
this Agreement. The proceeds realized upon the exercise of the
remedies provided herein shall be applied by the Agent, for the
benefit of the Secured Parties, in the manner provided in SECTION
10.5 of the Credit Agreement. Each of the Pledgors hereby waives
any and all right to require the marshalling of assets in
6<PAGE>
connection with the exercise of any of the remedies permitted by
applicable law or provided herein.
19. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the
Secured Parties, and all obligations of the Pledgors hereunder,
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document or any other
agreement or instrument relating to any of the Secured
Obligations;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Secured
Obligations, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument
relating to any of the Secured Obligations, including but
not limited to (i) an increase or decrease in the Secured
Obligations and (ii) an amendment of any Loan Document to
permit the Agent or the Lenders or any one or more of them
to extend further or additional credit to the Pledgors in
any form including credit by way of loan, purchase of
assets, guarantee or otherwise, which credit shall thereupon
be and become subject to the Credit Agreement and the other
Loan Documents as a Secured Obligation;
(c) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for all or any of
the Secured Obligations; or
(d) any other circumstances (including without
limitation any statute of limitations) which might otherwise
constitute a defense available to, or a discharge of, the
Pledgors or any Guarantor.
20. ENTIRE AGREEMENT. This Agreement, together with the
Credit Agreement, the Guaranty Agreement and other Loan
Documents, constitutes and expresses the entire understanding
between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings,
inducements, commitments or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof
control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof. Neither this
Agreement nor any portion or provision hereof may be changed,
altered, modified, supplemented, discharged, canceled, terminated
or amended orally or in any manner other than by an agreement, in
writing signed by the parties hereto.
21. FURTHER ASSURANCES. Each of the Pledgors agrees at its
own expense to do such further acts and things, and to execute
and deliver such additional conveyances, assignments, financing
statements, agreements and instruments, as the Agent may at any
time reasonably request in connection with the administration or
enforcement of this Agreement or related to the Collateral or any
part thereof or in order better to assure and confirm unto the
Agent its rights, powers and remedies for the benefit of the
Secured Parties hereunder. The Pledgors hereby consent and agree
that the issuers of or obligors in respect of the Collateral
shall be entitled to accept the provisions hereof as conclusive
evidence of the right of the Agent, on behalf of the Secured
7<PAGE>
Parties, to exercise its rights hereunder with respect to the
Collateral, notwithstanding any other notice or direction to the
contrary heretofore or hereafter given by either of the Pledgors
or any other Person to any of such issuers or obligors.
22. BINDING AGREEMENT; ASSIGNMENT. This Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and
inure to the benefit of the parties hereto, and to their
respective successors and assigns, except that the Pledgors shall
not be permitted to assign this Agreement or any interest herein
or in the Collateral, or any part thereof, or otherwise pledge,
encumber or grant any option with respect to the Collateral, or
any part thereof, or any cash or property held by the Agent as
Collateral under this Agreement. All references herein to the
Agent shall include any successor thereof, each Lender and any
other obligees from time to time of the Obligations.
23. SWAP AGREEMENTS. All obligations of the Borrower under
Swap Agreements shall be deemed to be Secured Obligations secured
hereby, and each Lender or affiliate of a Lender party to any
such Swap Agreement shall be deemed to be a Secured Party
hereunder.
24. SEVERABILITY. In case any Lien, security interest or
other right of any Secured Party or any provision hereof shall be
held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien,
security interest or other right granted hereby or provision
hereof.
25. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and all the counterparts taken together
shall be deemed to constitute one and the same instrument.
26. INDEMNIFICATION. Without limitation of SECTION 12.9 of
the Credit Agreement or any other indemnification provision in
any Loan Document, the Pledgors hereby covenant and agree to pay,
indemnify, and hold the Secured Parties harmless from and against
any and all other out-of-pocket liabilities, costs, expenses or
disbursements of any kind or nature whatsoever arising in
connection with any claim or litigation by any Person resulting
from the execution, delivery, enforcement, performance and
administration of this Agreement or the Loan Documents, or the
transactions contemplated hereby or thereby, or in any respect
relating to the Collateral or any transaction pursuant to which
either of the Pledgors has incurred any Obligation (all the
foregoing, collectively, the "indemnified liabilities");
provided, however, that the Pledgors shall have no obligation
hereunder with respect to indemnified liabilities directly or
primarily arising from the willful misconduct or gross
negligence of the Agent or any Lender. The agreements in this
subsection shall survive repayment of all Secured Obligations,
termination or expiration of this Agreement and occurrence of the
Revolving Credit Termination Date.
27. REMEDIES CUMULATIVE. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies
of the Agent provided by law or under the Credit Agreement, the
other Loan Documents, or other applicable agreements or
instruments. The making of the Loans to and the issuance of
Letters of Credit for the benefit of the Borrower pursuant to the
Credit Agreement and the extension of the Revolving Credit
Facility to the Borrower pursuant to the Credit Agreement shall
8<PAGE>
be conclusively presumed to have been made or extended,
respectively, in reliance upon the Pledgors' pledge of the
Collateral pursuant to the terms hereof.
28. NOTICES. Any notice required or permitted hereunder
shall be given, (a) with respect to the Pledgors, at the address
of the Borrower indicated in SECTION 12.2 of the Credit Agreement
and (b) with respect to the Agent or a Lender, at the Agent's
address indicated in SECTION 12.2 of the Credit Agreement. All
such notices shall be given and shall be effective as provided in
SECTION 12.2 of the Credit Agreement.
29. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
(b) EACH OF THE PLEDGORS HEREBY EXPRESSLY AND
IRREVOCABLY AGREES AND CONSENTS THAT ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND
THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN
ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
HAMILTON, STATE OF TENNESSEE, UNITED STATES OF AMERICA OR
THE COUNTY OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED
STATES OF AMERICA, AND, BY THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE PLEDGORS EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING, AND EACH OF THE PLEDGORS HEREBY IRREVOCABLY
SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF
ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH OF THE PLEDGORS AGREES THAT SERVICE OF
PROCESS MAY BE MADE BY PERSONAL SERVICE OF A COPY OF THE
SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH
SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR CERTIFIED
MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 12.2 OF THE CREDIT AGREEMENT, OR BY ANY
OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE
LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) or (b) HEREOF
SHALL PRECLUDE ANY SECURED PARTY FROM BRINGING ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE THE PLEDGORS OR ANY OF THE PLEDGORS'
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION
THEREWITH, EACH PARTY HERETO HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY AND HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL
BY JURY IN ANY SUCH ACTION OR PROCEEDING.
9
[Signature page follows.]<PAGE>
IN WITNESS WHEREOF, the undersigned Pledgors and the Agent
have caused this LC Account Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized
as of the date first above written.
MILLER INDUSTRIES, INC.
By: /s/ Jeffrey Badgley
Name: Jeffrey Badgley
Title: President
MILLER INDUSTRIES TOWING
EQUIPMENT INC.
By: /s/ Adam Dunayer
Name: Adam Dunayer
Title: Vice President
NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as Agent for the Lenders
By: /s/ Gregory E. Merriman
Name: Gregory E. Merriman
Title: Commercial Banking Officer
LC ACCOUNT AGREEMENT
SIGNATURE PAGE 1 OF 1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment
Agreement") is made and entered into effective as of the 31st day
of January, 1998, by and among MILLER INDUSTRIES, INC., a
Tennessee corporation ("Miller"), and MILLER INDUSTRIES TOWING
EQUIPMENT INC., a Delaware corporation and wholly owned
subsidiary of Miller ("Miller Towing") (Miller and Miller Towing
may be referred to herein individually as a "Borrower" and
together as the "Borrowers"), EACH OF THE GUARANTORS SIGNATORY
HERETO (the "Guarantors"), NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, a national banking association organized and
existing under the laws of the United States, as agent for the
Lenders ("Agent") under the Credit Agreement (as defined below),
and the Lenders. Unless the context otherwise requires, all
terms used herein without definition shall have the definitions
provided therefor in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Agent, the Lenders and the Borrowers have
entered into that certain Credit Agreement dated as of January
30, 1998 (as hereby and from time to time amended, supplemented
or replaced, the "Credit Agreement"), pursuant to which the
Lenders have agreed to make and have made available to the
Borrowers a revolving credit facility with a letter of credit
sublimit and a swing line sublimit; and
WHEREAS, the parties hereto desire to amend the Credit
Agreement in the manner herein set forth effective as of the date
hereof;
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS. The term "Credit Agreement" or
"Agreement" (as the case may be) as used herein and in the Loan
Documents shall mean the Credit Agreement as hereby amended and
modified, and as further amended, modified or supplemented from
time to time as permitted thereby.
2. AMENDMENTS. Subject to the conditions hereof, the
Credit Agreement is hereby amended, effective as of the date
hereof, as follows:
(a) The following definition shall be included in
SECTION 1.1 of the Credit Agreement in its proper
alphabetical position:
"Net Repurchased Shares" has the meaning
ascribed to such term in SECTION 9.8.
(b) The definition of "Consolidated Tangible
Shareholders' Equity" set forth in SECTION 1.1 of the Credit
Agreement is hereby deleted in its entirety and replaced by
the following:
"Consolidated Shareholders' Equity" means, as
of any date on which the amount thereof is to be
determined, the sum of the following in respect of
Miller and its Subsidiaries (determined on a
consolidated basis): (i) the amount of issued and
outstanding share capital, plus (ii) the amount of
<PAGE>
additional paid-in capital and retained earnings
(or, in the case of a deficit, minus the amount of
such deficit), plus (iii) the amount of any
foreign currency translation adjustment (if
positive, or, if negative, minus the amount of
such translation adjustment), plus (iv) the amount
of any non-recurring noncash restructuring charges
incurred since October 31, 1997, minus (v) the
amount of any treasury stock, all as determined in
accordance with GAAP applied on a Consistent
Basis.
(c) SECTION 8.22 of the Credit Agreement is hereby
deleted in its entirety and replaced by the following:
SECTION 8.22. Post-Closing Covenants. On or
before April 30, 1998, deliver to the Agent and
the Lenders the Pledge Agreement and Security
Instruments and other items required by SECTION
8.19(b) with respect to each Direct Foreign
Subsidiary of Miller, as if such Direct Foreign
Subsidiary were a newly-created Direct Foreign
Subsidiary subject to the provisions of such
SECTION 8.19(b).
(d) Subsection (a) of SECTION 9.1 of the Credit
Agreement is hereby deleted in its entirety and replaced by
the following:
(a) Consolidated Shareholders' Equity.
Permit Consolidated Shareholders' Equity to be
less than (i) $150,000,000 on January 31, 1998,
and (ii) at the last day of each succeeding fiscal
quarter of Miller (the "Step Up Date"), commencing
with the fiscal quarter ending April 30, 1998, and
until (but excluding) the last day of the next
following fiscal quarter of Miller, the difference
between (1) the sum of (A) the amount of
Consolidated Shareholders' Equity required to be
maintained pursuant to this SECTION 9.1(a) as at
the immediately preceding Step Up Date (or as at
January 31, 1998, in the case of the initial Step
Up Date), plus (B) fifty percent (50%) of
Consolidated Net Income for the period beginning
with the first day of such fiscal quarter of
Miller and ending on the Step Up Date, plus (C)
100% of the Net Proceeds of any Equity Offering,
minus (2) the aggregate cost of any Net
Repurchased Shares as of such Step Up Date, in an
amount up to but not exceeding $10,000,000 as
permitted pursuant to SECTION 9.8.
(e) SECTION 9.8 of the Credit Agreement is hereby
deleted in its entirety and replaced by the following:
9.8 Restricted Payments. Make any Restricted
Payment or apply or set apart any of their assets
therefor or agree to do any of the foregoing;
provided, however, that Miller may make the
following Restricted Payments during the period
indicated (on a non-cumulative basis, with the
effect that amounts not paid in any such period
may not be carried over for payment in a
2
<PAGE>
subsequent period) if immediately prior to and
immediately after giving effect thereto no Default
or Event of Default shall exist: (i) Miller may
from time to time repurchase shares of its common
stock, $.01 par value per share (the "Common
Stock"), on the open market pursuant to a publicly
announced share repurchase program for the express
purpose of re-issuing such shares in one or more
Permitted Acquisitions, provided that the
aggregate cost of any shares of Common Stock which
have been so repurchased and not re-issued in
connection with a Permitted Acquisition (referred
to as "Net Repurchased Shares") at any given time
does not exceed $10,000,000, and (ii) Miller may
make additional Restricted Payments (other than
repurchases of Common Stock) during each Fiscal
Year, beginning with the 1998 Fiscal Year, in an
aggregate amount not to exceed $3,000,000.
(f) Exhibit M to the Credit Agreement is hereby
amended and restated in its entirety as set forth on Annex I
attached hereto and incorporated herein by reference.
3. GUARANTORS. Each Guarantor hereby (i) consents and
agrees to the amendments to the Credit Agreement set forth herein
and (ii) confirms its joint and several guarantee of payment of
all the Guarantors' Obligations pursuant to the Guaranty.
4. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers
hereby certifies that:
(a) The representations and warranties made by the
Borrowers in Article VII of the Credit Agreement are true
and correct in all material respects on and as of the date
hereof, with the same effect as though such representations
and warranties were made on the date hereof, except to the
extent that such representations and warranties expressly
relate to an earlier date.
(b) No event has occurred and no condition exists
which, upon the consummation of the transaction contemplated
hereby, will constitute a Default or an Event of Default on
the part of the Borrowers under the Credit Agreement or any
other Loan Document either immediately or with the lapse of
time or the giving of notice, or both.
5. ENTIRE AGREEMENT. This Amendment Agreement sets forth
the entire understanding and agreement of the parties hereto in
relation to the subject matter hereof and supersedes any prior
negotiations and agreements among the parties relative to such
subject matter. No promise, condition, representation or
warranty, express or implied, not herein set forth shall bind any
party hereto, and not one of them has relied on any such promise,
condition, representation or warranty. Each of the parties
hereto acknowledges that, except as otherwise expressly stated
herein, no representations, warranties or commitments, express or
implied, have been made by any party to the other. None of the
terms or conditions of this Amendment Agreement may be changed,
modified, waived or canceled orally or otherwise, except by
writing, signed by all the parties hereto, specifying such
change, modification, waiver or cancellation of such terms or
conditions, or of any preceding or succeeding breach thereof.
3
<PAGE>
6. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby
specifically amended, modified or supplemented, the Credit
Agreement and all of the other Loan Documents are hereby
confirmed and ratified in all respects and shall remain in full
force and effect according to their respective terms.
7. COUNTERPARTS. This Amendment Agreement may be executed
in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the
same instrument.
8. GOVERNING LAW. This Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the
State of Georgia.
9. ENFORCEABILITY. Should any one or more of the
provisions of this Amendment Agreement be determined to be
illegal or unenforceable as to one or more of the parties hereto,
all other provisions nevertheless shall remain effective and
binding on the parties hereto.
10. CREDIT AGREEMENT. All references in any of the Loan
Documents to the "Credit Agreement" shall mean the Credit
Agreement as amended hereby.
11. SUCCESSORS AND ASSIGNS. This Amendment Agreement shall
be binding upon and inure to the benefit of each of the
Borrowers, the Lenders and the Agent and their respective
successors, assigns and legal representatives; provided, however,
that the Borrowers, without the prior consent of the Agent, may
not assign any rights, powers, duties or obligations hereunder.
12. EXPENSES. The Borrowers agree to pay to the Agent and
the Lenders all reasonable out-of-pocket expenses incurred or
arising in connection with the negotiation and preparation of
this Amendment Agreement.
[Signature pages follow.]
4<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to Credit Agreement to be duly executed by their
duly authorized officers, all as of the day and year first above
written.
BORROWERS:
MILLER INDUSTRIES, INC.
By: /s/ Adam Dunayer
Name: Adam Dunayer
Title: VP CFO
MILLER INDUSTRIES TOWING EQUIPMENT
INC.
By: /s/ David Tatum
Name: David Tatum
Title: Vice President of Finance
AMENDMENT NO. 1 TO CREDIT AGREEMENT
SIGNATURE PAGE 1 OF 5<PAGE>
GUARANTORS:
A-2 WRECKER SERVICE, INC.
A-EXCELLENCE TOWING CO.
ALL AMERICAN TOWING SERVICES, INC.
ALLIED TOWING AND RECOVERY, INC.
APACO, INC.
APPLE TOWING CO., INC.
A TO Z ENTERPRISES, INC.
B&B ASSOCIATED INDUSTRIES, INC.
BEAR TRANSPORTATION, INC.
BERT'S TOWING RECOVERY CORPORATION
BOB BOLIN SERVICES, INC.
BOULEVARD & TRUMBULL TOWING, INC.
BREWER'S, INC.
C&L TOWING SERVICES, INC.
CASSON INVESTMENT CORPORATION
CEDAR BLUFF 24 HOUR TOWING, INC.
CENTURY HOLDINGS, INC.
CHAMPION CARRIER CORPORATION
CHEVRON, INC.
CHEVRON SOUTH/SOUTHERN WRECKER
LEASING, INC.
CHICAGO METRO SERVICES, INC.
CLEVELAND VEHICLE DETENTION CENTER,
INC.
COMPETITION WHEELIFT, INC.
D.A. HANELINE, INC.
DICK'S TOWING & ROAD SERVICE, INC.
DOLLAR ENTERPRISES, INC.
E.B.T., INC.
EXPORT ENTERPRISES, INC.
GEORGIA EXPORT ENTERPRISES, INC.
GOLDEN WEST TOWING EQUIPMENT INC.
GOOD MECHANIC AUTO CO. OF
RICHFIELD, INC.
GREG'S TOWING, INC.
H&H TOWING ENTERPRISES, INC.
HALL'S TOWING SERVICE, INC.
HENDRICKSON TOWING, INC.
H.M.R. ENTERPRISES, INC.
INTERSTATE TOWING & RECOVERY, INC.
JENKINS WRECKER SERVICE, INC.
JENNINGS ENTERPRISES, INC.
KAUFF'S, INC.
KING AUTOMOTIVE & INDUSTRIAL
EQUIPMENT, INC.
LAZER TOW SERVICES, INC.
LEWIS WRECKER SERVICE, INC.
LINCOLN TOWING ENTERPRISES, INC.
MERL'S TOWING SERVICE, INC.
MID-AMERICA WRECKER & EQUIPMENT
SALES, INC. OF COLORADO
MIKE'S WRECKER SERVICE, INC.
MILLER FINANCIAL SERVICES GROUP, INC.
MILLER/GREENEVILLE, INC.
MILLER INDUSTRIES DISTRIBUTING, INC.
AMENDMENT NO. 1 TO CREDIT AGREEMENT
SIGNATURE PAGE 2 OF 5<PAGE>
MILLER INDUSTRIES INTERNATIONAL, INC.
MOORE'S SERVICE & TOWING, INC.
MOORE'S TOWING SERVICE, INC.
MURPHY'S TOWING, INC.
OFFICIAL TOWING, INC.
O'HARE TRUCK SERVICE, INC.
PETE'S A TOWING, INC.
PIPES ENTERPRISES, INC.
PURPOSE, INC.
RAR ENTERPRISES, INC.
RANDY'S HIGH COUNTRY TOWING, INC.
RAY HARRIS, INC.
ROAD BUTLER, INC.
ROAD ONE, INC.
ROAD ONE INSURANCE SERVICES, INC.
ROAD ONE SERVICE, INC.
RONNY MILLER WRECKER SERVICE INC.
SANDY'S AUTO & TRUCK SERVICE, INC.
SOUTHERN WRECKER CENTER, INC.
SOUTHERN WRECKER SALES, INC.
SPEED'S AUTOMOTIVE, INC.
SPEED'S RENTALS, INC.
SROGA'S AUTOMOTIVE SERVICES, INC.
SUBURBAN WRECKER SERVICE, INC.
TEAM TOWING AND RECOVERY, INC.
TED'S OF FAYVILLE, INC.
TEXAS TOWING CORPORATION
THOMPSON'S WRECKER SERVICE, INC.
TREASURE COAST TOWING, INC.
TRUCK SALES & SALVAGE CO., INC.
AMENDMENT NO. 1 TO CREDIT AGREEMENT
SIGNATURE PAGE 3 OF 5<PAGE>
VRCHOTA CORPORATION
VULCAN EQUIPMENT COMPANY, INC.
VULCAN INTERNATIONAL (DELAWARE), INC.
WALKER TOWING, INC.
WES'S SERVICE INCORPORATED
ZEBRA TOWING, INC.
By: /s/ Frank Madonia
Name: Frank Madonia
Title: Attorney-in-Face
AMENDMENT NO. 1 TO CREDIT AGREEMENT
SIGNATURE PAGE 4 OF 5<PAGE>
AGENT AND LENDERS:
NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION,
as Agent for the Lenders and as a Lender
By: /s/ Lawrence M. Richey
Name: Lawrence M. Richey
Title: Sr. VP
BANK OF AMERICA, FSB
By: /s/ Howard Kim
Name: Howard Kim
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ John B. Tibe
Name: John B. Tibe
Title: AVP
FIRST AMERICAN NATIONAL BANK
By: /s/ Suzanne T. Schriver
Name: Suzanne T. Schriver
Title: Executive Vice President
AMENDMENT NO. 1 TO CREDIT AGREEMENT
SIGNATURE PAGE 5 OF 5<PAGE>
ANNEX I
EXHIBIT M
Compliance Certificate
NationsBank of Tennessee,
National Association, as Agent
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 386-9436
Reference is hereby made to the Credit Agreement dated as of
January 30, 1998 (as may be amended from time to time, the
"Agreement") among MILLER INDUSTRIES, INC., a Tennessee
corporation ("Miller"), MILLER INDUSTRIES TOWING EQUIPMENT INC.,
a Delaware corporation ("Miller Towing," and together with
Miller, the "Borrowers"), the Lenders (as defined in the
Agreement) and NationsBank of Tennessee, National Association, as
Agent for the Lenders ("Agent"). Capitalized terms used but not
otherwise defined herein shall have the respective meanings
therefor set forth in the Agreement. The undersigned, a duly
authorized and acting Authorized Representative, hereby certifies
to you as of _____________, 19___ (the "Determination Date") as
follows:
1. Calculations
A. Compliance with SECTION 9.1(a): Consolidated
Shareholders' Equity
1. Issued and outstanding share capital $__________
2. Additional paid-in capital plus retained income
(retained deficit to be expressed as a negative) $__________
3. Foreign currency translation (to be expressed as
a negative, if applicable) $__________
4. Non-recurring noncash restructuring charges
since ____________, 19__ $__________
5. Treasury stock $___________
6. Consolidated Shareholders' Equity
(A.1 + A.2 + A.3 + A.4 - A.5) $___________
Required:
(i) Requirement for prior fiscal quarter; plus $___________
(ii) 50% of Consolidated Net Income since first
day of current fiscal quarter; plus $___________
Annex I-1
<PAGE>
(iii) 100% of the Net Proceeds of any Equity
Offering $___________
Total: $___________
B. Compliance with SECTION 9.1(b): Consolidated Funded
Senior Indebtedness to Consolidated EBITDA
1. Consolidated Funded Senior Indebtedness $__________
2. Consolidated EBITDA for such period $__________
a. Consolidated Net Income $__________
b. Consolidated Interest Expense $__________
c. Taxes on income $__________
d. Amortization $__________
e. Depreciation $__________
f. Non-recurring noncash
restructuring charges $__________
g. Net gains on the sale, conversion
or other disposition of capital
assets $__________
h. Net gains on the acquisition,
retirement, sale or other
disposition of capital stock and
other securities $__________
i. Net gains on the collection of
proceeds of life insurance
policies $__________
j. Write-ups of any assets other than
permitted by FAS 16 $__________
k. Other extraordinary net gains
or credits $__________
TOTAL ([a + b +c + d + e + f] -
[g + h + i + j + k]) $__________
3. Ratio of B.2 to B.1 ____ to ____
Required: Line 3 must not be more than 3.00
to 1.00
C. Compliance with SECTION 9.1(c): Consolidated Funded
Total Indebtedness to Consolidated EBITDA
1. Consolidated Funded Total Indebtedness $__________
2. Consolidated EBITDA for such period (see B.2) $__________
3. Ratio of C.2 to C.1 ____ to ___
Required: Line 3 must not be more than 3.50
to 1.00
D. Compliance with SECTION 9.1(d): Consolidated Fixed
Charge Ratio
1. Consolidated EBITDA for such period (see B.2) $___________
2. Lease, rental and other expenses in connection
with operating leases for such period $___________
3. Capital Expenditures for such period $___________
4. Taxes paid or accrued on income for such period $___________
Annex I-2
<PAGE>
5. Consolidated Fixed Charges for such period:
(i) Consolidated Interest
Expense, plus $___________
(ii) Lease, rental and other expenses
in connection with operating
leases, plus $___________
(iii) Current maturities of Consolidated
Funded Total Indebtedness, plus $___________
(iv) Current maturities of Capital
Leases, plus $___________
(v) Payments in respect of Acquisitions
representing any deferred portion
of consideration, plus $___________
(vi) Payments in respect of Off Balance
Sheet Liabilities $___________
TOTAL (i + ii + iii + iv + v + vi) $___________
6. D.1 + D.2 $___________
7. D.3 + D.4 $___________
8. D.6 - D.7 $___________
9. Ratio of C.8 to C.5 ___ to ___
Required: Not less than --
Closing Date through and including the
day immediately prior to Fiscal Year
End 1999 1.00 to 1.00
Fiscal Year End 1999 through and including
the day immediately prior to Fiscal Year 2000 1.20 to 1.00
Fiscal Year End 2000 and thereafter 1.25 to 1.00
E. Compliance with SECTION 9.2: Acquisitions
1. Acquisitions during fiscal quarter, including Cost
of Acquisition
a. Name of Subsidiary: ______________ $__________
b. Name of Subsidiary: ______________ $__________
c. Name of Subsidiary: ______________ $__________
d. Name of Subsidiary: ______________ $__________
e. Name of Subsidiary: ______________ $__________
f. Name of Subsidiary: ______________ $__________
g. Name of Subsidiary: ______________ $__________
h. Name of Subsidiary: ______________ $__________
2. Total Cost of Acquisition during fiscal quarter $__________
3. Total Cost of Acquisition during prior fiscal
quarters during such Fiscal year $__________
4. Total Cost of Acquisition during Fiscal Year to
date $__________
Required: Cost of Acquisition not greater than
$10,000,000 per acquisition or
$50,000,000 in any Fiscal Year
Annex I-3
<PAGE>
F. Compliance with SECTION 9.4(d): Purchase Money
Indebtedness and Capital Lease Obligations
1. Purchase money and Capital Lease obligations $__________
Required: Not more than $5,000,000 outstanding
at any time
G. Compliance with SECTION 9.4(e): Guarantees of Trade
Account Indebtedness
1. Guarantees of trade account indebtedness $__________
Required: Not more than $2,000,000 outstanding
at any time
H. Compliance with SECTION 9.4(h): Additional Indebtedness
1. Total additional Indebtedness $__________
Required: Not more than $5,000,000 outstanding
at any time
I. Compliance with SECTION 9.8: Restricted Payments
1. Repurchases of Common Stock
a. Aggregate cost of Net Repurchased
Shares at end of prior quarter $_________
b. Aggregate cost of shares repurchased
during quarter $__________
c. Aggregate cost of shares reissued
in connection with Permitted
Acquisitions during quarter $__________
d. Aggregate cost of Net Repurchased
Shares at end of current quarter
(a + b - c) $__________
Required: Not more than $10,000,000 in aggregate
cost of Net Repurchased Shares at
any time
2. Additional Restricted Payments
a. Restricted Payments during fiscal
quarter $__________
b. Restricted Payments during prior
fiscal quarters during such Fiscal
Year $__________
c. Restricted Payments during
Fiscal Year to date $__________
Required: Restricted Payments not greater than
$3,000,000 during any Fiscal Year
Annex I-4
<PAGE>
2. No Default
A. Since __________ (the date of the last similar
certification), (a) the Borrowers have not defaulted in the
keeping, observance, performance or fulfillment of its
obligations pursuant to any of the Loan Documents; and
(b) no Default or Event of Default specified in Article X of
the Agreement has occurred and is continuing.
B. If a Default or Event of Default has occurred
since __________ (the date of the last similar
certification), the Borrowers propose to take the following
action with respect to such Default or Event of Default: ____
_____________________________________________________________
_____________________________________________________________
____________________________________________________________
________________________.
(Note, if no Default or Event of Default has occurred,
insert "Not Applicable").
The Determination Date is the date of the last required
financial statements submitted to the Lenders in accordance with
SECTION 8.1 of the Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this _____
day of __________, 19___.
By:_________________________________
Authorized Representative
Name:_______________________________
Title:______________________________
Annex I-5
EXHIBIT 21
Subsidiaries of the Registrant
Name State of Organization
- ---- ---------------------
407664 British Columbia Ltd. British Columbia
A-2 Wrecker Service, Inc. Delaware
A-Excellence Towing Co. Delaware
Ackerman Wrecker Service, Inc. Delaware
All American Towing Services, Inc. Delaware
Allied Gardens Towing, Inc. Delaware
Allied Towing & Recovery, Inc. Delaware
Altamonte Towing, Inc. Delaware
Anderson Towing Service, Inc. Delaware
APACO, Inc. Delaware
Apple Towing Co., Inc. Delaware
A to Z Enterprises, Inc. Delaware
B&B Associated Industries, Inc. Delaware
B-G Towing, Inc. Delaware
Bear Transportation, Inc. Delaware
Bert's Towing Recovery Corporation Delaware
Bill Gerlock Towing Co. Oregon
Bob's Auto Service, Inc. Delaware
Bob Bolin Services, Inc. Delaware
Boniface Engineering Limited Great Britain
Boulevard & Trumbull Towing, Inc. Delaware
Brewer's Delaware
C&L Towing Service, Inc. Delaware
Cal West Towing, Inc. Delaware
Canadian Towing Equipment Inc. Ontario
Casson Investment Corporation Missouri
Cedar Bluff 24 Hour Towing, Inc. Delaware
Century Holdings, Inc. Tennessee
Century Wrecker (Canada) Ltd. Ontario
Champion Carrier Corporation Delaware
Chevron, Inc. Pennsylvania
Chicago Metro Services, Inc. Illinois
Clarence Cornish Automotive Service, Inc. Delaware
Cleveland Vehicle Detention Center, Inc. Delaware
Competition Wheelift, Inc. Delaware
DA Haneline, Inc. Delaware
Dick's Towing & Road Service, Inc. Delaware
Dollar Enterprises, Inc. Delaware
Don's Towing, Inc. Delaware
EBT, Inc. Delaware
Export Enterprises, Inc. Delaware
FG Russell Truck Equipment, Ltd. British Columbia
Georgia Export Enterprises, Inc. Delaware
Golden West Towing Equipment Inc. Delaware
Good Mechanic Auto Co. of Richfield, Inc. Delaware
Great America Towing, Inc. Delaware
Greg's Towing, Inc. Delaware
H&H Towing Enterprises, Inc. Delaware
HMR Enterprises, Inc. Maryland
Hall's Towing Service, Inc. Delaware
Hendrickson Towing, Inc. Delaware
Interstate Towing & Recovery, Inc. Delaware
Jenkins Wrecker Service, Inc. Delaware
Jennings Enterprises, Inc. Delaware
Kauff's, Inc. Delaware
King Automotive & Industrial
Equipment, Inc. Delaware
Lazer Tow Services, Inc. Delaware
Levesque's Auto Service, Inc. Delaware
Lewis Wrecker Service, Inc. Delaware
Lincoln Enterprises, Inc. Delaware
M&M Towing & Recovery, Inc. Delaware
Merl's Towing Service, Inc. Delaware
Mid-America Wrecker & Equipment
Sales, Inc. of Colorado Delaware
Mike's Wrecker Service, Inc. Delaware
Miller Financial Services Group, Inc. Tennessee
Miller/Greeneville, Inc. Tennessee
Miller Industries Distributing, Inc. Delaware
Miller Industries International, Inc. Tennessee
Miller Industries Towing Equipment Inc. Delaware
Moore's Service & Towing, Inc. Delaware
Moore's Towing Service, Inc. Delaware
Murphy's Towing, Inc. Delaware
Official Towing, Inc. Delaware
O'Hare Truck Service, Inc. Delaware
Pete's A Towing, Inc. Delaware
Pipes Enterprises, Inc. Delaware
Purpose, Inc. Delaware
RAR Enterprises, Inc. Delaware
RMA Acquisition Corp. Delaware
Randy's High Country Towing, Inc. Delaware
Ray Harris, Inc. Delaware
Road Butler, Inc. Delaware
Road One, Inc. Delaware
Road One Insurance Services, Inc. Delaware
Road One Service, Inc. Delaware
Ronny Miller Wrecker Service, Inc. Delaware
SA Jige International France
Sakstrup Towing, Inc. Delaware
Sandy's Auto & Truck Service, Inc. Delaware
Sonoma Circuits, Inc. Delaware
Southern Wrecker Center, Inc. Delaware
Southern Wrecker Sales, Inc. Delaware
Speed's Automotive, Inc. Oregon
Speed's Rentals, Inc. Oregon
Sroga's Automotive Services, Inc. Delaware
Suburban Wrecker Service, Inc. Delaware
Team Towing and Recovery, Inc. Illinois
Ted's of Fayville, Inc. Delaware
Texas Towing Corporation Delaware
Thompson's Wrecker Service, Inc. Delaware
Tow Pro Custom Towing & Hauling, Inc. Delaware
Treasure Coast Towing, Inc. Delaware
Truck Sales & Salvage Co., Inc. Delaware
Vrchota Corporation Delaware
Vulcan Equipment Company, Inc. Mississippi
Vulcan International, Inc. Delaware
Walker Towing, Inc. Delaware
Wes's Service Incorporated Delaware
Western Towing; McClure/Earley
Enterprises, Inc. Delaware
Wiltse Towing, Inc. Delaware
Zebra Towing, Inc. Delaware
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
of our reports included in this Form 10-K, into Miller Industries, Inc.'s
previously filed Registration Statements on Form S-3 (File No. 333-
34639), Form S-4 (File No. 333-34641), and Form S-8 (File No. 33-82282).
/s/ ARTHUR ANDERSEN LLP
Chattanooga, Tennessee
July 24, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000924822
<NAME> MILLER INDUSTRIES, INC./TN
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> APR-30-1998
<PERIOD-START> MAY-01-1997
<PERIOD-END> APR-30-1998
<CASH> 7,367
<SECURITIES> 0
<RECEIVABLES> 67,008
<ALLOWANCES> 0
<INVENTORY> 71,839
<CURRENT-ASSETS> 155,793
<PP&E> 115,243
<DEPRECIATION> (29,394)
<TOTAL-ASSETS> 329,730
<CURRENT-LIABILITIES> 51,019
<BONDS> 95,778
0
0
<COMMON> 459
<OTHER-SE> 179,777
<TOTAL-LIABILITY-AND-EQUITY> 329,730
<SALES> 397,213
<TOTAL-REVENUES> 397,213
<CGS> 319,453
<TOTAL-COSTS> 372,973
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,389
<INCOME-PRETAX> 20,851
<INCOME-TAX> 8,186
<INCOME-CONTINUING> 12,665
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 12,665
<EPS-PRIMARY> 0.28
<EPS-DILUTED> 0.27
</TABLE>
