Seventh Amendment to Credit Agreement


EXHIBIT 10.1


 


SEVENTH AMENDMENT TO CREDIT AGREEMENT





            THIS SEVENTH AMENDMENT
TO CREDIT AGREEMENT (the “Amendment”) is made and entered into as of the 31st day of October 2003, 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”), the Lenders whose signatures appear on the signature
pages hereof (the “Lenders”), THE CIT GROUP/BUSINESS CREDIT, INC., as Collateral Agent, and BANK OF AMERICA, N.A., as
Administrative Agent, Syndication Agent, Existing Title Collateral gent and Letter of Credit Issuer (in such capacities, together
with the Collateral Agent, the “Agents”).


W I T N E S S E T H:


            WHEREAS, Borrower, the
Lenders and the Agents entered into that certain Credit Agreement, dated as of July 23, 2001, pursuant to which the Lenders agreed
to make certain loans to Borrowers (as amended, modified, supplemented and restated from time to time, the “Credit
Agreement”); and


            WHEREAS, the Borrowers,
the Agents and Lenders desire to make certain amendments to the Credit Agreement on the terms and conditions set forth
herein.


            NOW, THEREFORE, in
consideration of the foregoing premises, and other good and valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:


           
1.         Definitions.  All capitalized terms used herein and not otherwise
expressly defined herein shall have the respective meanings given to such terms in the Credit Agreement.


           
2.         Amendments to Credit Agreement.


           
            (a)        Annex A to the
Credit Agreement shall be amended by:


                                   
(i)         amending the definition of Letter of Credit Subfacility by deleting the amount
“$10,000,000” and inserting in lieu thereof the amount “$1,500,000”.


                                   
(ii)        amending the definition of Maximum Miller Revolver Amount by deleting the amount
“$42,000,000” and inserting in lieu thereof the amount “$30,000,000”.


                                   
(iii)       amending subsection (b)(iv) of the definition of Maximum RoadOne Revolver Amount by
deleting the amount “$9,000,000” and inserting in lieu thereof the amount “$2,500,000”.


                                   
(iv)       amending subsection (b)(i) of the definition of Miller Borrowing Base by deleting the
amount “$5,000,000” and inserting in lieu thereof the amount “$3,500,000”.





                                 
(v)        amending the definition of Net Senior Creditor Proceeds by replacing the defined term
“Term Loan” in subsections (a) and (b) thereof with the defined term “Original Term Loan”.


                                 
(vi)       amending clause (f) of the definition of Restricted Investment by deleting the following
text in its entirety:  “in an aggregate amount outstanding not to exceed $4,000,000”.


                                 
(vii)      amending the definition of Term Loan and Term Loans by deleting the text thereof in its
entirety and in lieu thereof inserting the following text:


          “Term Loan” means, individually, each of the Original Term Loans and
the New Term Loans, as the context may require, and “Term Loans” means, collectively, the Original Term Loans
and the New Term Loans.


                                 
(viii)      adding thereto, in the appropriate place based on alphabetical order, the following new
defined term:


          “Seventh Amendment” means that certain “Seventh Amendment to
Credit Agreement” by and among the Borrowers, Lenders, and Agents, as identified therein, dated as of October 31,
2003.


                     
(b)        Section 7.25 of the Credit Agreement shall be amended by:


                                 
(i)         amending subsection (a) by deleting the amount “$5,000,000” and
inserting in lieu thereof the amount “$4,000,000;


                                 
(ii)        amending subsection (b) by deleting the amount “$4,000,000” and
inserting in lieu thereof the amount “$3,000,000”.


                     
(c)        Section 1.3 of the Credit Agreement shall be amended by deleting the text thereof in
its entirety and inserting in lieu thereof the following text:


                     
1.3       Term Loans.


                                 
(a)        Original Term Loans.


                                             
(i)         Amounts of the Original Term Loans.  Each Lender severally agrees
to make a term loan (any such term loan being referred to as an “Original Term Loan” and such term loans being
referred to collectively as the “Original Term Loans”) to the Borrowers on the Closing Date, upon the
satisfaction of the conditions precedent set forth in Article 8, in an amount equal to such Lender’s Pro Rata Share of
$8,000,000.  The Original Term Loans shall initially be Base Rate Term Loans.


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(ii)        Making of the Original Term Loans.  Each Lender shall make the amount of
such Lender’s Original Term Loan available to the Collateral Agent in same day funds, to the Collateral Agent’s
designated account, not later than 3:00 p.m. (Atlanta, Georgia time) on the Closing Date.  After the Collateral Agent’s
receipt of the proceeds of such Original Term Loans, upon satisfaction of the conditions precedent set forth in
Article 8, the Collateral Agent shall make the proceeds of such Original Term Loans available to the Borrowers on such
Funding Date by transferring same day funds equal to the proceeds of such Original Term Loans received by the Collateral Agent to
the Designated Account.


                                              
(iii)       Original Term Loan Amortization.  The Original Term Loan shall be due and
payable in consecutive monthly principal installments of $167,000 each on the first day of each calendar month, commencing on
August 1, 2001, with a final principal installment of all unpaid principal due and payable on the Termination Date; 
provided, however, that (A) the principal installment payment otherwise due by the Borrowers on November 1, 2003 in
accordance with the preceding sentence shall be deferred and shall be due and payable by the Borrowers on the Termination Date, and
(B) the principal installment payment otherwise due by the Borrowers on December 1, 2003 in accordance with the preceding sentence
shall be deferred and shall be due and payable by the Borrowers on December 31, 2003.  Each such installment shall be payable
to the Collateral Agent for the account of the applicable Lenders.  Payments or prepayments of the Original Term Loans may not
be reborrowed.


                                 
(b)        New Term Loans. 


                                             
(i)         Amounts of the New Term Loans.  Each Lender severally agrees to
make a term loan (any such term loan being referred to as a “New Term Loan” and such term loans being referred
to collectively as the “New Term Loans”) to the Borrowers on the date on which the Seventh Amendment becomes
effective in accordance with its terms (the “New Term Loan Funding Date”), in an amount equal to such
Lender’s Pro Rata Share of $2,000,000.  The New Term Loans shall initially be Base Rate Term Loans.


                                             
(ii)        Making of the New Term Loans.  Each Lender shall make the amount of such
Lender’s New Term Loan available to the Collateral Agent in same day funds, to the Collateral Agent’s designated
account, not later than 3:00 p.m. (Atlanta, Georgia time) on the New Term Loan Funding Date.  After the Collateral
Agent’s receipt of the proceeds of such New Term Loans, the Collateral Agent shall make the proceeds of such New Term Loans
available to the Borrowers on such Funding Date by paying down the balance of the then-outstanding Revolving Credit Loans by the
aggregate amount of the New Term Loans (without any permanent reduction in the Commitments as a result of such
pay-down).


                                             
(iii)       New Term Loan Principal Payment.  The full principal amount of the New Term
Loan, together with any then unpaid interest thereon, shall be due and payable on the Termination Date.  Interest shall be
payable on the New Term Loan in accordance with Section 2.1(a).


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(d)        Section 3.4 of the Credit Agreement shall be amended by substituting the defined
terms Term Loan and Term Loans, in each place where either of such terms is used, for the respective defined terms Original Term
Loan and Original Term Loans.


                     
(e)        Section 3.8 of the Credit Agreement shall be amended by:


                                 
(i)         inserting the text “other than the New Term Loans,” immediately
following the phrase “third, to pay interest due in respect of all Loans,”;


                                 
(ii)        substituting the text “sixth, to pay or prepay principal of the Term
Loans” with the text “sixth, to pay or prepay principal of the Original Term Loans”;


                                 
(iii)       deleting the following text in its entirety “and eighth, to the payment of
any other Obligation (including any amounts relating to Bank Products) due to the Agents or any Lender by the Borrowers” and
in lieu thereof inserting the following text:


          “eighth, to the payment of any other Obligation other than the New Term Loans
(including any amounts relating to Bank Products) due to the Agents or any Lender by the Borrowers, and ninth, to the
payment of principal and interest in connection with the New Term Loans”.


                     
(f)         Section 8.1 of the Credit Agreement shall be amended by substituting the
defined term Term Loans from the first sentence thereof and replacing it with the defined term Original Term Loans.


                     
(g)        Schedule 1.1 to the Credit Agreement shall be amended and restated in the form
attached hereto.


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


         
(a)        as of the date hereof, and after
giving effect to the terms hereof and to the terms of the Forbearance Agreement
(defined below), there exists no Default or Event of Default under the Credit
Agreement or any of the other Loan Documents, except Existing Defaults (as
defined in the Forbearance Agreement),



         
(b)        each representation and warranty
made or deemed to be made in this Amendment and in the Loan Documents is true
and correct 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 and except for any representation or warranty that
is untrue as a result of the occurrence or continuance of any of the Existing
Defaults as defined in the Forbearance Agreement) and Borrowers hereby reaffirm
each of the agreements, covenants and undertakings set forth in the Loan
Documents and in each and every other agreement, instrument and other document
executed in connection therewith or pursuant thereto as if Borrowers were making
said agreements, covenants and undertakings on the date hereof,


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          (c)        each Borrower has the power and is duly
authorized to enter into, deliver and perform this Amendment and


          (d)        this Amendment and each of the Loan
Documents is the legal, valid and binding obligation of each Borrower enforceable against it in accordance with its
terms.


          4.       Conditions Precedent.  The effectiveness of this Amendment is subject to
the following conditions precedent:


                     
(a)        Delivery of Documents.  The Collateral Agent shall have received from the
Borrowers the following documents, all in form and substance acceptable to Collateral Agent in its sole discretion:


                                 (i)         executed originals of this Amendment;
and


                                 (ii)        such other documents and instruments as the
Agents or any Lender may reasonably request.


                     
(b)        Forbearance Agreement.  That certain Forbearance Agreement, dated as of
the date hereof, between and among Borrowers, Agents and Lenders (the “Forbearance Agreement”) (i) shall have
been executed and delivered by all parties thereto and (ii) shall have become effective in accordance with its terms and
conditions.


          5.  Lender Approval of New Independent Certified Public Accountants. 
Lenders and Agents hereby acknowledge and agree that the appointment by Borrowers of Joseph Decosimo and Company, LLP as new
certified public accountants for the Borrowers is satisfactory to them.


          6.  Miscellaneous.  Each of the Borrowers agrees to take such further
action as the Agents shall reasonably request in connection herewith to evidence the agreements herein contained.  This
Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which,
when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute
but one and the same instrument.  The Credit Agreement, as amended hereby, shall be binding upon and inure to the benefit of
the successors and permitted assigns of the parties hereto.  This Amendment shall be governed by, and construed and enforced
in accordance with, the internal laws of the State of Georgia, but without giving effect to principles of conflicts of laws
thereof.  This Amendment may not be modified, altered or amended except by agreement in writing signed by all of the parties
hereto.  Each Borrower acknowledges that it has consulted with counsel and with such other expert advisors as it deemed
necessary in connection with the negotiation, execution and delivery of this Amendment.  This Amendment shall be construed
without regard to any presumption or rule requiring that it be construed against the party causing this Amendment or any part
hereof to be drafted.


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            IN WITNESS WHEREOF,
Borrowers, the Agents and the Lenders have caused this Agreement to be duly executed, all as of the date first above
written.





	 	“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.

MID AMERICA WRECKER & EQUIPMENT

         SALES, INC. OF COLORADO

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


    



 


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	 	“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/aCEDAR 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.


    



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	 	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.

    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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“ADMINISTRATIVE AGENT, SYNDICATION

    AGENT AND EXISTING
TITLED

    COLLATERAL AGENT” 


BANK OF AMERICA, N.A., as the Administrative

Agent, Syndication Agent and Existing Titled

Collateral Agent


By:      
 /s/ Sherry Lail                                     

Name:   Sherry Lail

Title:     Senior Vice President


 



“LETTER OF CREDIT ISSUER”


BANK OF AMERICA, N.A., as the Letter of

Credit Issuer


 


By:      
 /s/ Sherry Lail                                     

Name:   Sherry Lail

Title:     Senior Vice President


 


“COLLATERAL AGENT”


THE CIT GROUP/BUSINESS CREDIT, INC., as

the Collateral Agent


 


By:  /s/ Kenneth B. Butler                                 


Name: Kenneth B. Butler

Title: Vice President


    



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	 	“LENDERS”BANK OF AMERICA, N.A., as a Lender


 


By:      
 /s/ Sherry Lail                                     

Name:   Sherry Lail

Title:     Senior Vice President


 


THE CIT GROUP/BUSINESS CREDIT, INC.,

as a Lender


 


By:  /s/ Kenneth B. Butler                                 


Name: Kenneth B. Butler

Title: Vice President


 


FLEET CAPITAL CORPORATION, as a Lender


 


By:    /s/ Wes Mannis               

Name: Wes Mannis

Title: VP


    


  


 







SCHEDULE 1.1



	


 Lender

	
Total

Commitment


	
Revolving Loan

Commitment

	
Original Term Loan

Commitment

	
New Term Loan

Commitment

	
Pro Rata

Share

 (3 decimals)


	
Bank of America, N.A.

	
$16,420,329.09

	
$12,556,700.00

	
$3,090,909.09

	
$772,720.00

	
38.636


	
The CIT Group/Business

    Credit, Inc.

	
$16,420,329.09

	
$12,556,700.00

	
$3,090,909.09

	
$772,720.00

	
38.636


	
Fleet Capital Corporation

	
$9,659,341.82

	
$7,386,600.00

	
$1,818,181.82

	
$454,560.00

	
22.727