Exhibit 10.100





Exhibit
10.100

 

CONSENT
AND TENTH AMENDMENT TO CREDIT AGREEMENT

 

This
CONSENT AND TENTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is
made and entered into as of November 22, 2004 (the “Effective
Date”), by
and among MILLER INDUSTRIES, INC., a Tennessee corporation (“Parent”), each
of the other Subsidiaries of Parent listed on the signature pages hereof
(together with Parent, collectively, “Borrowers”), and
THE CIT GROUP/BUSINESS CREDIT, INC., as Agent and Lender (“Agent”).

 

W I T N E S S E T H:

 

WHEREAS,
reference is hereby made to that certain Credit Agreement, dated as of
July 23, 2001, by and among Borrowers, Agent and certain financial
institutions signatory from time to time thereto as Lenders (as amended,
restated, supplemented or otherwise modified from time to time including hereby,
the “Credit
Agreement”),
pursuant to which Lenders agreed to make certain loans to Borrowers (including,
without limitation, Champion Carrier Corporation (“Champion”));
and

 

WHEREAS,
pursuant to Schedule 6.9 of the
Credit Agreement, Lenders consented to the Debt and Liens arising out of and in
connection with the mortgage placed on certain real property owned by Champion
located at 2755 Kirila Boulevard, Hermitage, Pennsylvania 16148 (the
“Hermitage
Real Property”) in
connection with the Pennsylvania Industrial Development Corporation transaction,
which closed on or about February 29, 1996 (the “PIDC
Mortgage”);
and

 

WHEREAS,
Borrowers desire to refinance the PIDC Mortgage with financing from FSG Bank,
National Association (“FSG”)
pursuant to a mortgage, promissory note and certain other financing agreements
or documents, by and between Champion and FSG (the “FSG
Mortgage Documents”);
and

 

WHEREAS,
Borrowers have requested that Agent and Lenders: (a) permit Champion to
amend Schedule 6.9 of the
Credit Agreement regarding permitted Debt and to amend Schedule 7.18 of the
Credit Agreement regarding permitted Liens, and (b) consent to the
refinancing of the PIDC Mortgage pursuant to the FSG Mortgage Documents, and
Agent and Lenders have agreed to do so, pursuant and subject to the terms of
this Amendment; and

 

NOW,
THEREFORE, for and in consideration of the agreements contained herein and other
good and valuable consideration, the receipt, sufficiency and adequacy of which
are hereby acknowledged, Borrowers, Agent and Lenders agree as
follows:

 

1.    Capitalized
Terms. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Credit Agreement.

 

2.    Amendments
to Credit Agreement.
Effective as of the closing of the refinancing of the PIDC Mortgage pursuant to
the terms of the FSG Mortgage Documents, the Credit Agreement shall be amended
as follows:

 

(a)    by
deleting the existing Schedule 6.9 thereof
in its entirety and by substituting, in lieu thereof, the amended and restated
Schedule 6.9 attached
hereto as Exhibit A;
and

 

(b)    by
deleting the existing Schedule 7.18 thereof
in its entirety and by substituting, in lieu thereof, the amended and restated
Schedule 7.18 attached
hereto as Exhibit B;
and

 

3.    Consent.
Pursuant to Section 7.13 and Section 7.18 of the Credit Agreement,
Agent and Lenders consent to Champion’s execution, delivery and performance of
the FSG Mortgage Documents, subject to and conditioned upon the
following:

 
























 

(a)    the Debt
incurred by Champion in connection with the FSG Mortgage Documents shall not at
any time exceed $2,000,000
in the aggregate; and

 

(b)    at the
time of the incurrence of such Debt, no Default or Event of Default shall then
exist or be caused thereby; and

 

(c)    each FSG
Mortgage Document shall be executed and delivered by Champion in the form
delivered to, and reviewed by, Agent and Lenders, without amendment by any party
thereto; and

 

(d)    the
proceeds received by Champion in connection with refinancing of the PIDC
Mortgage pursuant to the FSG Mortgage Documents shall be used by Champion solely
to (i) pay and satisfy in full the Debt under the PIDC Mortgage, and
(ii) pay and satisfy in full the Debt owed to Bank of America, N.A. for the
equipment used in connection with the business at the Hermitage Real
Property.

 

Any
failure of the Borrowers to comply with the foregoing shall be deemed an Event
of Default under the Credit Agreement.

 

4.    Representations,
Warranties and Covenants of Borrowers. To
induce Agent and Lenders to enter into this Amendment, each Borrower hereby
represents, warrants and covenants to Agent and Lenders that:

 

(a)    as of the
date hereof, and after giving effect to the terms hereof, there exists no
Default or Event of Default under the Credit Agreement or any other Loan
Document; and

 

(b)    each
representation and warranty made or deemed to be made by such Borrower in this
Amendment and in the Loan Documents is true, correct and complete in all
material respects on and as of the date of this Amendment (except to the extent
that any such representation or warranty relates to a prior specific date or
period, in which case, such representation or warranty was true, correct and
complete on and as of such prior date or period) and such Borrower reaffirms
each agreement, covenant and undertaking set forth in the Loan Documents and in
each other agreement, instrument and other document executed in connection
therewith or pursuant thereto as if such Borrower was making such agreement,
covenant and/or undertaking on the date hereof; and

 

(c)    such
Borrower has the power and is duly authorized to execute, deliver and perform
this Amendment; and

 

(d)    this
Amendment and each Loan Document to which such Borrower is a party is the legal,
valid and binding obligation of such Borrower enforceable against such Borrower
in accordance with their respective terms.

 

5.    Release. As a
material inducement to Agent and Lenders to enter into this Amendment and to
continue to make loans under the Credit Agreement, as amended hereby, all of
which are to the direct advantage and benefit of the Borrowers, the Borrowers,
for themselves and their successors and assigns, (a) do hereby remise,
release, waive, relinquish, acquit, satisfy and forever discharge Agent and
Lenders, and all of the respective past, present and future officers, directors,
employees, agents, affiliates, attorneys, representatives, participants, heirs,
successors and assigns of Agent and Lenders (collectively, the “Discharged
Parties” and
each, a “Discharged
Party”), from
any and all manner of debts, accountings, bonds, warranties, representations,
covenants, promises, contracts, controversies, agreements, liabilities,
obligations, expenses, damages, judgments, executions, actions, suits, claims,
counterclaims, demands, defenses, setoffs, objections and causes of action of
any nature whatsoever, whether at law, in equity or otherwise, either now
accrued or hereafter maturing and whether known or unknown (including, but not
limited to, any and all claims which may be based on allegations of breach of
contract, failure to lend, fraud, promissory estoppel, libel, slander, usury,
negligence, misrepresentation, breach of fiduciary duty, bad faith, lender
malpractice, undue influence, duress, tortious interference with contractual
relations, interference with management, or misuse of control) which Borrowers
now have or hereafter can, shall or may have by reason of any matter, cause,
thing or event occurring on or prior to the date of this Amendment arising out
of, in connection with or relating to (i) the Obligations (including, but
not limited to, the administration or funding thereof), (ii) the Credit
Agreement and any other Loan Documents, or the indebtedness evidenced and
secured thereby, and (iii) any other 

 























 

 




agreement
or transaction between or among Borrowers and any Discharged Party relating to
or in connection with the Loan Documents or the transactions contemplated
therein; and (b) do hereby covenant and agree never to institute or cause
to be instituted or continue prosecution of any suit or other form of action or
proceeding of any kind or nature whatsoever against any Discharged Party, by
reason of or in connection with any of the foregoing matters, claims or causes
of action; provided,
however, that
the foregoing release and covenant not to sue shall not apply to any claims
arising after the date of this Amendment with respect to acts, occurrences or
events after the date of this Amendment.

 

6.    Effect
of this Amendment. Except
as expressly amended hereby, the Credit Agreement and each other Loan Document
shall be and remain in full force and effect as originally written. Agent’s
and Lenders’ agreement to the terms of this Amendment does not and shall not
create (nor shall any Borrower rely upon the existence of or claim or assert
that there exists) any obligation of Agent or any Lender to consider or agree to
any further amendments of the Credit Agreement or any other Loan Document. In
the event Agent or any Lender subsequently agrees to consider any further
amendment of the Credit Agreement or any other Loan Document, neither the terms
of this Amendment nor any other conduct of Agent or any Lender shall be of any
force or effect on Agent’s or any Lender’s consideration or decision with
respect thereto, and Agent and Lenders shall have no further obligation
whatsoever to consider or agree to further amendments of the Credit Agreement or
any other Loan Document.

 

7.    Relationship
of Parties. The
relationship of Agent and/or Lenders, on the one hand, and Borrowers, on the
other hand, has been and shall continue to be, at all times, that of creditor
and debtor and not as joint venturers or partners. Nothing contained in this
Amendment, the Credit Agreement or any other Loan Document, or any instrument,
document or agreement delivered in connection herewith or therewith, shall be
deemed or construed to create a fiduciary relationship between or among the
parties hereto or thereto.

 

8.    Expenses.
Borrowers jointly and severally agree to pay, on demand, all reasonable
out-of-pocket costs and expenses of Agent in connection with the preparation,
execution, delivery and enforcement of this Amendment and all other documents
and any other transactions contemplated hereby (including, without limitation,
the reasonable out-of-pocket fees and expenses of legal counsel to Agent).
Borrowers authorize Agent to charge such costs and expenses to Borrowers’ Loan
Account by increasing the principal amount of the Revolving Loan by the amount
of such costs and expenses in connection herewith.

 

9.    Further
Assurances. Each
Borrower agrees to take any further action that Agent may reasonably request
from time to time in connection herewith to evidence the terms of this
Amendment.

 

10.    Governing
Law. This
Amendment shall be governed by, and construed and enforced in accordance with,
the laws of the State of Georgia, excluding the application of its conflicts of
laws provisions.

 

11.    Counterparts. This
Amendment may be executed in multiple counterparts and by different parties
hereto in separate counterparts (any of which may be delivered by facsimile),
each of which, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute one and the same
Amendment.

 

[signatures
appear on the following pages]

 























 


 

IN
WITNESS WHEREOF, Borrowers, Agent and Lenders have caused this Agreement to be
executed and delivered by their respective duly authorized representatives as of
the Effective Date.

 




 


	 	
      “PARENT”:

       

      MILLER
      INDUSTRIES, INC.

       

      By:
      /s/ J. Vincent Mish

      J.
      Vincent Mish,

      Chief
      Financial Officer

       

      “SUBSIDIARY
      MILLER BORROWERS”:

       

      APACO,
      INC.

      B&B
      ASSOCIATED INDUSTRIES, INC.

      CHEVRON,
      INC.

      CENTURY
      HOLDINGS, INC.

      CHAMPION
      CARRIER CORPORATION

      COMPETITION
      WHEELIFT, INC.

      GOLDEN
      WEST TOWING EQUIPMENT INC.

      KING
      AUTOMOTIVE & INDUSTRIAL EQUIPMENT, INC.

      MAEX,
      INC.

      MILLER
      FINANCIAL SERVICES GROUP, INC.

      MILLER/GREENEVILLE,
      INC.

      MILLER
      INDUSTRIES DISTRIBUTING, INC.

      MILLER
      INDUSTRIES INTERNATIONAL, INC.

      MILLER
      INDUSTRIES TOWING EQUIPMENT INC.

      PURPOSE,
      INC.

      SONOMA
      CIRCUITS, INC.

      SOUTHERN
      WRECKER CENTER, INC.

      SOUTHERN
      WRECKER SALES, INC.

       

      By:
      /s/ J. Vincent Mish

      J.
      Vincent Mish

      Vice
      President and Attorney-in-Fact of each entity listed
  above







 

[signatures
continue on following pages]




























 


	 	
      “SUBSIDIARY
      ROADONE BORROWERS”:

       

      AETEX,
      INC., f/k/a A-EXCELLENCE TOWING CO.

      ALL
      AMERICAN TOWING SERVICES, INC.

      B-G
      TOWING, INC.

      BEAR
      TRANSPORTATION, INC.

      BTRCX,
      INC. f/k/a BERT’S TOWING RECOVERY CORPORATION

      BBSX,
      INC. f/k/a BOB BOLIN SERVICES, INC.

      BASIEX,
      INC. f/k/a BOB’S AUTO SERVICE, INC.

      BTRX,
      INC.

      BVSWS,
      INC. f/k/a BOB VINCENT AND SONS WRECKER SERVICE, INC.

      CAL
      WEST TOWING, INC.

      CBTX,
      INC., f/k/a CEDAR BLUFF 24 HOUR TOWING, INC.

      CCASX,
      INC.

      CEX,
      INC., f/k/a CHAD’S INC.

      CVDC,
      f/k/a CLEVELAND VEHICLE DETENTION CENTER, INC.

      D.A.
      HANELINE, INC.

      DVREX,
      INC.

      DOLLAR
      ENTERPRISES, INC.

      DSX,
      INC., f/k/a DUGGER’S SERVICES, INC.

      GMAR,
      INC., f/k/a GOOD MECHANIC AUTO CO. OF RICHFIELD, INC.

      GREAT
      AMERICA TOWING, INC.

      GREG’S
      TOWING, INC.

      HTX,
      INC.

      LTSX,
      INC., f/k/a LAZER TOW SERVICES, INC.

      LASX,
      INC.

      LWKR,
      INC.

      MAEJO,
      INC.

      MEL’S
      ACQUISITION CORP.

      MGEX,
      INC.

      MSTEX,
      INC.

      MTSX
      INC.

      MURPHY’S
      TOWING, INC.

      P.A.T.,
      INC.

      PEX,
      INC., f/k/a/ PIPES ENTERPRISES, INC.

      RMA
      ACQUISITION CORP.

      RRIC
      ACQUISITION CORP.

      RSX,
      INC., f/k/a RECOVERY SERVICES, INC.

      “SUBSIDIARY
      ROADONE BORROWERS” (continued):

      ROAD
      ONE, INC.

      ROADONE
      EMPLOYEE SERVICES, INC.

      ROAD
      ONE INSURANCE SERVICES, INC.

      ROAD
      ONE SERVICE, INC.

      ROAD
      ONE SPECIALIZED TRANSPORTATION, INC.

      ROADONE
      TRANSPORTATION AND LOGISTICS, INC.

      R.M.W.S.,
      INC.

      SWSX,
      INC. (f/k/a SUBURBAN WRECKER SERVICE, INC.)

      TEXAS
      TOWING CORPORATION

      TPCTH,
      INC.

      TREASURE
      COAST TOWING, INC.

      TREASURE
      COAST TOWING OF MARTIN COUNTY, INC.

      TSSC,
      INC., f/k/a TRUCK SALES & SALVAGE CO., INC.

      TWSX,
      INC.

      WSX,
      INC., f/k/a WES’S SERVICE INCORPORATED

      WTX,
      INC. (f/k/a WILTSE TOWING, INC.)

      WTC,
      INC.

      WTEX,
      INC.

      ZTRX,
      INC., f/k/a ZEHNER TOWING & RECOVERY, INC.

       

      By:
      /s/ J. Vincent Mish 

      J.
      Vincent Mish

      Vice
      President and Attorney-in-Fact of each entity listed above

       







 

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continue on the following page]



















 



	 	
      “AGENT”:

       

      THE
      CIT GROUP/BUSINESS CREDIT, INC.

       

      By:
      /s/ Kenneth B. Butler

      Kenneth
      B. Butler

      Vice
      President

       

      “LENDERS”:

       

      THE
      CIT GROUP/BUSINESS CREDIT, INC.

       

      By:
      /s/ Kenneth B. Butler

      Kenneth
      B. Butler

      Vice
      President