AMENDED AND RESTATED CREDIT AGREEMENT







 

AMENDED AND RESTATED CREDIT
AGREEMENT

by and among

MILLER INDUSTRIES, INC.

and

MILLER INDUSTRIES TOWING
EQUIPMENT INC.

as Borrowers,

BANK OF AMERICA, N.A.

as Agent and as Lender,

 

 

and

 

THE LENDERS PARTY HERETO FROM
TIME TO TIME

 

July 23, 2001

 



 


  
  	
        TABLE OF CONTENTS

        
         

			Page
			
	
        ARTICLE I
        
Definitions and Terms

        
         

			
	
        1.1.
	
        Definitions
	
        3

	
        1.2.
	
        Rules of
        Interpretation
	
        17

	
        1.3.
	
        Amendment and
        Restatement
	
        18

	
        2.1.
	
        Payment of
        Principal
	
        19

	 
        ARTICLE I

        Definitions and Terms

			
	
        2.1.
	
        Term Loan; Payment
        of Principal
	
        19

	
        2.2.
	
        Payment of
        Interest
	
        21

	
        2.3.
	
        Non-Conforming
        Payments
	
        21

	
        2.4.
	
        Notes
	
        22

	
        2.5.
	
        Pro Rata Payments
	
        22

	
        2.6.
	
        Optional
        Prepayments
	
        22

	
        2.7.
	
        Mandatory
        Prepayments
	
        22

	
        2.8.
	
        Use of Proceeds
	
        23

	
        2.9.
	
        Commitment Fee
	
        23

	 
        ARTICLE II

        The Term Loan

         

	
        3.1.
	
        Ratification of
        Existing Security Instruments
	
        25

	
        3.2.
	
        Assignment of
        Mortgage; Intercompany Security Documents Assignment
	
        25

	
        3.3.
	
        Guaranty
	
        25

	
        3.4.
	
        Stock Pledge
	
        25

	
        3.5.
	
        Security Interests
	
        25

	
        3.6.
	
        Further Assurances
	
        25

	
        3.7.
	
        Intercreditor
        Matters
	
        25

	 
        ARTICLE IV

        Change in Circumstances

         

	
        4.1.
	
        Increased Cost and
        Reduced Return
	
        25

	
        4.2.
	
        Taxes
	
        26

	
        4.3.
	
        Lending Office
	
        27

	ARTICLE
        V
        Conditions to Making Loans
        and Issuing Letters of Credit

         

	
        5.1.
	
        Conditions of
        Making Loan
	
        28



  


 

i



 


  
  	
        ARTICLE VI

        
        Representations and
        Warranties

        
         

	
        6.1.
	
        Organization and
        Authority
	
        31

	
        6.2.
	
        Loan Documents
	
        31

	
        6.3.
	
        Solvency
	
        31

	
        6.4.
	
        Subsidiaries and
        Stockholders
	
        32

	
        6.5.
	
        Ownership
        Interests
	
        32

	
        6.6.
	
        Financial
        Condition
	
        32

	
        6.7.
	
        Title to
        Properties
	
        32

	
        6.8.
	
        Taxes
	
        32

	
        6.9.
	
        Other Agreements
	
        32

	
        6.10.
	
        Litigation
	
        33

	
        6.11.
	
        Margin Stock
	
        33

	
        6.12.
	
        Investment Company
	
        33

	
        6.13.
	
        Patents, Etc.
	
        33

	
        6.14.
	
        No Untrue
        Statement
	
        33

	
        6.15.
	
        No Consents, Etc.
	
        34

	
        6.16.
	
        Employee Benefit
        Plans
	
        34

	
        6.17.
	
        No Default
	
        35

	
        6.18.
	
        Environmental
        Matters
	
        35

	
        6.19.
	
        Employment Matters
	
        35

	
        6.20.
	
        Perfected Security
        Instruments
	
        35

	
         

        ARTICLE VII

        Affirmative
        Covenants

         

	
        7.1.
	
        Financial Reports,
        Etc.
	
        37

	
        7.2.
	
        Maintain
        Properties
	
        38

	
        7.3.
	
        Existence,
        Qualification, Etc.
	
        38

	
        7.4.
	
        Regulations and
        Taxes
	
        38

	
        7.5.
	
        Insurance
	
        38

	
        7.6.
	
        True Books
	
        38

	
        7.7.
	
        Right of
        Inspection
	
        38

	
        7.8.
	
        Observe all Laws
	
        39

	
        7.9.
	
        Governmental
        Licenses
	
        39

	
        7.10.
	
        Covenants
        Extending to Other Persons
	
        39

	
        7.11.
	
        Officer’s
        Knowledge of Default
	
        39

	
        7.12.
	
        Suits or Other
        Proceedings
	
        39

	
        7.13.
	
        Notice of
        Environmental Complaint or Condition
	
        39

	
        7.14.
	
        Environmental
        Compliance
	
        39

	
        7.15.
	
        Indemnification
	
        39

	
        7.16.
	
        Further Assurances
	
        40

	
        7.17.
	
        Employee Benefit
        Plans
	
        40

	
        7.18.
	
        Continued
        Operations
	
        41

	
        7.19.
	
        Additional Support
        Documents
	
        41

	
        7.20.
	
        Subsidiary Support
        of Permitted Indebtedness
	
        42

	
        7.21.
	
        Opinions of
        Foreign Counsel
	
        42

	
        7.22.
	
        Additional
        Collateral Documents; Audit
	
        42

	
        7.23.
	
        Senior Facility
        Notices
	
        44

	
        7.24.
	
        Existing Facility
        Interest Payment
	
        44



  


 

 

ii



 


  
	
      ARTICLE
      VIII

      Negative
      Covenants

       

	
      8.1.
	
      Financial Covenants
	
      45

	
      8.2.
	
      Acquisitions
	
      45

	
      8.3.
	
      Liens
	
      45

	
      8.4.
	
      Indebtedness
	
      46

	
      8.5.
	
      Transfer of Assets
	
      47

	
      8.6.
	
      Investments
	
      47

	
      8.7.
	
      Merger or
      Consolidation
	
      48

	
      8.8.
	
      Restricted Payments
	
      48

	
      8.9.
	
      Transactions with
      Affiliates
	
      48

	
      8.10.
	
      Compliance with
      ERISA, the Code and Foreign Benefit Laws
	
      48

	
      8.11.
	
      Accounting Changes
	
      49

	
      8.12.
	
      Dissolution, etc.
	
      49

	
      8.13.
	
      Limitations on Sales
      and Leasebacks
	
      49

	
      8.14.
	
      Change in Control
	
      49

	
      8.15.
	
      Limitation on
      Guaranties
	
      49

	
      8.16.
	
      Negative Pledge
      Clauses
	
      49

	
      8.17.
	
      Prepayments, Etc. of
      Indebtedness
	
      49

	
      8.18.
	
      Restrictive
      Agreements
	
      50

	
      8.19
	
      Modification of
      Senior Facility
	
      50

	
       

      ARTICLE IX

      Events of
      Default and Acceleration

       

	
      9.1.
	
      Events of Default
	
      51

	
      9.2.
	
      Agent to Act
	
      53

	
      9.3.
	
      Cumulative Rights
	
      53

	
      9.4.
	
      No Waiver
	
      53

	
      9.5.
	
      Allocation of
      Proceeds
	
      53

	
      9.6.
	
      Judgment Currency
	
      54

	
       

      ARTICLE X

      The Agent

       

	
      10.1.
	
      Appointment, Powers,
      and Immunities
	
      55

	
      10.2.
	
      Reliance by Agent
	
      55

	
      10.3.
	
      Defaults
	
      55

	
      10.4.
	
      Rights as Lender
	
      56

	
      10.5.
	
      Indemnification
	
      56

	
      10.6.
	
      Non-Reliance on
      Agent and Other Lenders
	
      56

	
      10.7.
	
      Resignation of Agent
	
      56

	
      10.8.
	
      Fees
	
      56

	
       

      ARTICLE XI

      Miscellaneous

       

	
      11.1.
	
      Assignments and
      Participations
	
      57

	
      11.2.
	
      Notices
	
      58

	
      11.3.
	
      Right of Set-off;
      Adjustments
	
      59



  


 

iii



 

 


  
	
      11.4.
	
      Survival
	
      59

	
      11.5.
	
      Expenses
	
      59

	
      11.6.
	
      Amendments and
      Waivers
	
      60

	
      11.6A.
	
      Release of Liens
	
      60

	
      11.7.
	
      Counterparts
	
      60

	
      11.8.
	
      Termination
	
      60

	
      11.9.
	
      Indemnification
	
      61

	
      11.10.
	
      Severability
	
      61

	
      11.11.
	
      Entire Agreement
	
      61

	
      11.12.
	
      Agreement Controls
	
      61

	
      11.13.
	
      Usury Savings Clause
	
      61

	
      11.14.
	
      Governing Law;
      Waiver of Jury Trial
	
      62

	
      11.15.
	
      Payments
	
      62

	
      11.16.
	
      Subordination
	
      62

	
      11.17.
	
      Joint and Several
      Obligations
	
      63



  


 

	
      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
	
      Form of Note
	
      D-1

	
      EXHIBIT E
	
      Form of Opinion of
      Borrowers’ and Guarantors’ Counsel
	
      E-1

	
      EXHIBIT F
	
      Compliance
      Certificate
	
      F-1

	
      EXHIBIT G
	
      Form of Warrant
      Agreement
	
      G-1



 

 

iv




 

 

	
      SCHEDULE 6.4
	
      Subsidiaries

	
      SCHEDULE 6.6
	
      Existing
      Indebtedness

	
      SCHEDULE 6.7
	
      Title to Properties

	
      SCHEDULE 6.10
	
      Litigation

	
      SCHEDULE 6.19
	
      Employment Matters

	
      SCHEDULE 7.5
	
      Insurance



 


v




 

 

 

 

AMENDED AND RESTATED CREDIT
AGREEMENT

 

THIS
AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of July 24, 2001 (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"), BANK OF AMERICA, N.A, a national banking association
organized and existing under the laws of the United States, in its capacity as a
Lender ("Bank of America"), 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 11.1 (hereinafter such
financial institutions may be referred to individually as a "Lender"
or collectively as the "Lenders"), and BANK OF AMERICA, N.A., 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
10.7, the "Agent");


W I T N E S S E T H:

WHEREAS,
the Borrowers, the Agent and the Lenders are party to that certain Credit
Agreement dated as of January 30, 1998, as amended by Amendment No. 1 to Credit
Agreement dated as of January 31, 1998 and by Amendment No. 2 to Credit
Agreement dated as of October 30, 1998 and by Amendment No. 3 to Credit
Agreement dated as of July 27, 1999 and by Amendment No. 4 to Credit Agreement
dated as of August 13, 1999 and by Amendment No. 5 to Credit Agreement dated as
of July 26, 2000 and by Amendment No. 6 to Credit Agreement dated as of December
14, 2000 (as hereby and from time to time amended, restated, supplemented,
modified or replaced, the "Existing Credit Agreement"), pursuant to
which the Lenders agreed to make and have made available to the Borrowers a
credit facility including a revolving credit and term loan facility with a
letter of credit sublimit and a swing line sublimit (the "Existing
Facility"); and

WHEREAS,
the Borrowers are entering into a Credit Agreement of even date herewith (the
"Senior Credit Agreement") with the Senior Agents and the Senior
Lenders (as hereafter defined) simultaneously with the effectiveness hereof,
pursuant to which the Senior Lenders are providing a senior revolving credit
facility and term loan facility in the aggregate maximum principal amount of
$110,000,000 (the "Senior Facility"), the initial proceeds of which
shall be used to repay $82,180,570.84 of outstanding Indebtedness of the
Borrowers in favor of the Agent and the Lenders under the Existing Facility; and

WHEREAS,
the Borrowers have requested that the Lenders amend and restate the Existing
Credit Agreement and make available to the Borrowers a junior term loan facility
in the maximum principal amount outstanding of $14,000,000, the proceeds of
which term loan facility are to be used as provided in Section 2.8
hereof; and

WHEREAS,
the Lenders are willing to amend and restate the Existing Credit Agreement and
make such junior facility available to the Borrowers upon the terms and
conditions set forth herein; and

WHEREAS,
the Borrowers acknowledge that this Agreement constitutes an amendment and
restatement (and not a novation) of the Existing Credit Agreement and the
Obligations hereunder shall continue to be secured by the Collateral currently
securing Obligations of the Borrowers under (and as defined in) the Existing
Credit Agreement pursuant to the Security Instruments and such additional
Collateral as may be granted by the Borrowers to the Agent and the Lenders; and

NOW,
THEREFORE, the Borrowers, the Lenders
and the Agent hereby agree as follows:

 

2



 

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:


  
    "Accounts"
    means, as to Miller or any Subsidiary, all of entity’s now owned or
    hereafter acquired or arising accounts, as defined in the Uniform Commercial
    Code, including any rights to payment for the sale or lease of goods or
    rendition of services, whether or not they have been earned by performance.

    "Account
    Debtor" means each Person obligated in any way on or in connection with
    an Account.

    "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, 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.

    "Adjusted
    Net Earnings from Operations" means, with respect to any fiscal period
    of Miller and its Subsidiaries on a consolidated basis, Miller’s and its
    Subsidiaries’ net income after provision for income taxes for such fiscal
    period, as determined in accordance with GAAP and reported on the financial
    statements delivered to the Agent for such period, excluding any and all of
    the following included in such net income: (a) gain or loss arising from the
    sale of any capital assets (provided, that, up to $891,000 in the
    aggregate of gain from capital asset sales that occurred during the Fiscal
    Year ended April 30, 2001 shall be included in net income for the fiscal
    periods ending on April 30, 2001, July 31, 2001, October 31, 2001 and
    January 31, 2002 to the extent such asset sales occurred during such fiscal
    periods); (b) gain arising from any write-up in the book value of any asset;
    (c) earnings of any Person, substantially all the assets of which have been
    acquired by Miller or any of its Subsidiaries in any manner, to the extent
    realized by such other Person prior to the date of acquisition; (d) earnings
    of any Person (other than Miller or any of its Subsidiaries) in which Miller
    or any of its Subsidiaries has an ownership interest unless (and only to the
    extent) such earnings shall actually have been received by Miller or such
    Subsidiary in the form of cash distributions; (e) earnings of any Person to
    which assets of Miller or any of its Subsidiaries shall have been sold,
    transferred or disposed of, or into which Miller or any of its Subsidiaries
    shall have been merged, or which has been a party with Miller or any of its
    Subsidiaries to any consolidation or other form of reorganization, prior to
    the date of such transaction; (f) gain arising from the acquisition of debt
    or equity securities by Miller or any of its Subsidiaries or from
    cancellation or forgiveness of Indebtedness; and (g) gain and non-cash
    losses arising from extraordinary items, as determined in accordance with
    GAAP, or from any other non-recurring transaction.

    "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, for each Lender at any time, a fraction,
    the numerator of which shall be such Lender’s Commitment and the denominator
    shall be the Total Commitment, which Applicable Commitment Percentage for
    each Lender as of the Closing Date is as set forth in Exhibit A; 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 11.1.

  



 

3



 

 


  
    "Applicable
    Margin" means 6.00% per annum.

    "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 of Miller or its Subsidiaries,
    excluding cash, cash equivalents, inventory disposed of in the ordinary
    course of business, and equipment disposed of in the ordinary course of
    business which is obsolete or no longer useable by Miller or its
    Subsidiaries in their business and with respect to which the proceeds of the
    sale of such assets are used to purchase similar equipment to replace the
    unnecessary or obsolete equipment (provided such equipment is replaced with
    replacement equipment within ninety (90) days after any such sale or
    disposition), 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)).

    "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 11.1.

    "Assignment
    of Leases" means, collectively, any Assignment of Lessee’s Interest in
    Leases by the Borrowers and the Guarantors to the Agent for the benefit of
    the Lenders delivered pursuant to the terms of the Existing Credit Agreement
    or this Agreement, as hereinafter modified, amended or supplemented from
    time to time.

    "Assignment
    of Mortgage" means that certain Assignment of Deed of Trust by Miller
    to the Agent for the benefit of the Lenders dated as of the Closing Date,
    acknowledged and consented to by Thomas I. Starling, as trustee
    ("Trustee"), covering that certain Deed of Trust and Security
    Agreement dated as of March 31, 1999 by and among Fabri-Tech, L.L.C.,
    Miller, and Trustee, encumbering certain real property described therein
    located in Olive Branch, De Soto County, Mississippi, as hereinafter
    modified, amended or supplemented from time to time.

    "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
    of America" means Bank of America, N.A., a national banking
    association.

    "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.

    "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.

  



 

4



 

 


  
    "Borrowing Base
    Asset" means any asset of either of the Borrowers or any Subsidiary
    which is included in the Senior Borrowing Base (or against the value of
    which the Senior Lenders advanced the term loan portion of the Senior
    Facility) and has a Senior Collateral Value.

    "Business Day"
    means 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.

    "Capital
    Expenditures" means, with respect to Miller and its Subsidiaries, all
    payments due (whether or not paid during any fiscal period) in respect of
    the cost of any fixed asset or improvement, or replacement, substitution, or
    addition thereto, which has a useful life of more than one year, including,
    without limitation, those costs arising in connection with the direct or
    indirect acquisition of such asset by way of increased product or service
    charges or in connection with a Capital Lease.

    "Capital Lease"
    means any lease of property by a Borrower or any Subsidiary which, in
    accordance with GAAP, should be reflected as a capital lease on the balance
    sheet of such Borrower or Subsidiary.

    "Certificate and
    Receipt of Registrar" means any Certificate and Receipt of Registrar
    delivered to the Agent pursuant to Section 7.19, in each case
    substantially in the form provided by the Agent and 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.

    "Certificate of Title
    Property" means all property which is a motor vehicle or other good,
    whether such property is now owned or hereafter acquired, for which
    ownership is (i) covered by a certificate of title or other comparable
    instrument issued under a statute of a state under the law of which
    indication of a security interest on such certificate or instrument is
    required as a condition of perfection, and (ii) not subject to a purchase
    money Lien in favor of another creditor which is permitted by Section 8.3
    hereof.

    "Change of
    Control" means, at any time:

    
      
        (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
    5.1 have been satisfied.

  



5



 

     


  
    "Code" means the
    Internal Revenue Code of 1986, as amended, and any regulations promulgated
    thereunder.

    "Collateral" means
    the collateral described in the Security Instruments. Notwithstanding
    anything herein or in any other Loan Document to the contrary, the Liens of
    the Agent and the Lenders in the Collateral shall not secure any Obligations
    arising from or under the Warrant Agreement or the Warrants.

    "Collateral Assignment
    of Interests" means any Collateral Assignment of Interests delivered to
    the Agent pursuant to Section 7.19, in form and substance
    satisfactory to the Agent and the Lenders, as any such Collateral Assignment
    of Interests may be hereafter amended, supplemented or restated from time to
    time.

    "Commitment"
    means, with respect to each Lender, the obligation of such Lender to make
    the Loan to the Borrower in a principal amount equal to such Lender’s
    Applicable Commitment Percentage of the Total Commitment as set forth on Exhibit
    A.

    "Commitment Fee
    Rate" means on each date shown below that percent per annum set forth
    below for such date:

  



 


  
	
      First
      Business Day that occurs
	
      First
      Business Day that occurs
	
      First
      Business Day that occurs
	
      First
      Business Day that occurs

	
      Six (6) months

      from Closing Date
	
      Twelve (12) months

      from Closing Date
	
      Eighteen (18) months

      from Closing Date
	
      Twenty-four (24) months

      from Closing Date

	
      1.00%
	
      2.00%
	
      4.00%
	
      6.00%



  


 


  
    "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 6.6(a).

    "Consolidated EBITDA"
    means, with respect to any fiscal period of Miller and its Subsidiaries on a
    consolidated basis, Adjusted Net Earnings from Operations, plus, to
    the extent deducted in the determination of Adjusted Net Earnings from
    Operations for that fiscal period, Consolidated Interest Expense, Federal,
    state, local and foreign income taxes, depreciation and amortization. In
    calculating Consolidated EBITDA, at a time when the Subsequent EBITDA
    Requirement is applicable under Section 8.1(c), for any fiscal
    period, EBITDA will be calculated as if the Asset Disposition of the assets
    and/or stock of the RoadOne Borrowers giving rise to the occurrence of the
    Transition Date had occurred prior to such fiscal period.

    "Consolidated Fixed
    Charge Coverage Ratio" means, with respect to any fiscal period of
    Miller and its Subsidiaries on a consolidated basis, the ratio of
    Consolidated EBITDA to Consolidated Fixed Charges.

    "Consolidated Fixed
    Charges" means, with respect to any fiscal period of the Miller and its
    Subsidiaries on a consolidated basis, without duplication, Consolidated
    Interest Expense, Capital Expenditures (excluding Capital Expenditures
    funded with Indebtedness of any of the Borrowers and Subsidiaries other than
    the Indebtedness hereunder or under the Senior Facility, but including,
    without duplication, principal payments with respect to such Indebtedness),
    scheduled principal payments of Indebtedness, and Federal, state, local and
    foreign income taxes, excluding deferred taxes; provided, in the case
    of principal payments hereunder, only principal amounts actually paid to the
    Agent and the Lenders in accordance with Section 2.1 hereof shall be
    included as "scheduled principal payments of Indebtedness" in
    calculating the amount of Consolidated Fixed Charges for any fiscal period.

  



     

6



 

     


  
    "Consolidated Interest
    Expense" means, with respect to any fiscal period of the Miller and its
    Subsidiaries on a consolidated basis, interest on Indebtedness required or
    scheduled to be paid during the period for which computation is being made
    (including the interest component of all Capital Leases and synthetic
    leases), excluding the amortization of fees and costs incurred with respect
    to the closing of loans.

    "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" means, with respect to any Person, all obligations of such
    Person which in any manner directly or indirectly guarantee or assure, or in
    effect guarantee or assure, the payment or performance of any indebtedness,
    dividend or other obligations of any other Person (the "guaranteed
    obligations"), or assure or in effect assure the holder of the
    guaranteed obligations against loss in respect thereof, including any such
    obligations incurred through an agreement, contingent or otherwise: (a) to
    purchase the guaranteed obligations or any property constituting security
    therefor; (b) to advance or supply funds for the purchase or payment of the
    guaranteed obligations or to maintain a working capital or other balance
    sheet condition; or (c) to lease property or to purchase any debt or equity
    securities or other property or services.

    "Debt Offering"
    means Indebtedness of Miller or any Subsidiary not otherwise permitted under
    Section 8.4(a) through 8.4(f) which is incurred with the
    consent of the Required Lenders.

    "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 the lesser of (i) a rate of interest per annum which shall be four
    percent (4%) above the Base Rate, and (ii) the maximum rate permitted by
    applicable law.

    "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 11.1, 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:

    
      
        (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

      

    

  



         

7



 

         


  
    
      
        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 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.

    "Event of Default"
    means any of the occurrences set forth as such in Section 9.1.

    "Excess
    Availability" means "Excess Availability" as defined in the
    Senior Credit Agreement.

  



     

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    "Exchange Act"
    means the Securities Exchange Act of 1934, as amended, and the regulations
    promulgated thereunder.

    "Existing Credit
    Agreement" has the meaning ascribed thereto in the recitals hereof.

    "Existing
    Facility" has the meaning ascribed thereto in the recitals hereof.

    "Facility Termination
    Date" means such date as all of the following shall have occurred: (a)
    the Borrowers shall have permanently terminated the Term Loan Facility by
    payment in full of all Term Loan Outstandings, together with all accrued and
    unpaid interest thereon, and (b) the Borrowers shall have fully, finally and
    irrevocably paid and satisfied in full all Obligations (other than
    Obligations consisting of continuing indemnities and other contingent
    Obligations of the Borrowers or any Guarantor that may be owing to the
    Lenders pursuant to the Loan Documents and expressly survive termination of
    this Agreement).

    "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 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; and provided that in the event Miller changes its Fiscal Year
    to end on January 31 of each calendar year, "Fiscal Year" shall
    mean the twelve month fiscal period of Miller commencing on February 1 and
    ending on January 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.

  



     

9



 

     


  
    "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.

    "Guaranty" means,
    collectively or individually as the context may indicate, (i) each Guaranty
    Agreement between one or more of the Guarantors and the Agent delivered
    pursuant to the terms of the Existing Credit Agreement, and (ii) any
    additional Guaranty Agreements delivered to the Agent pursuant to Section
    7.19, substantially in the form of the existing Guaranty Agreements, 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.

    "Indebtedness"
    means with respect to any Person, without duplication, all liabilities,
    obligations and indebtedness of such Person to any Person, of any kind or
    nature, now or hereafter owing, arising, due or payable, howsoever
    evidenced, created, incurred, acquired or owing, whether primary, secondary,
    direct, contingent, fixed or otherwise, in each case to the extent such
    liabilities, obligations and indebtedness consist of (a) indebtedness for
    borrowed money or the deferred purchase price of property, excluding trade
    payables, (b) obligations and liabilities of any other Person secured by any
    Lien on such Person’s property, even though such Person shall not have
    assumed or become liable for the payment thereof; provided, however,
    that all such obligations and liabilities which are limited in recourse to
    such property shall be included as Indebtedness of such Person only to the
    extent of the book value of such property as would be shown on a balance
    sheet of such Person prepared in accordance with GAAP; (d) the principal
    amount of all obligations or liabilities created or arising under any
    Capital Lease or conditional sale or other title retention agreement with
    respect to property used or acquired by such Person, even if the rights and
    remedies of the lessor, seller or lender thereunder are limited to
    repossession of such property; provided, however, that all
    such obligations and liabilities which are limited in recourse to such
    property shall be included as Indebtedness of such Person only to the extent
    of the book value of such property as would be shown on a balance sheet of
    such Person prepared in accordance with GAAP; (e) obligations and
    liabilities in respect of Contingent Obligations with respect to
    Indebtedness of another Person; and (f) the present value of lease
    payments due under synthetic leases.

    "Independent
    Distributors" means any and all distributors of the Borrowers which do
    not constitute Subsidiaries of Miller.

    "Intellectual Property
    Security Agreement" means the Intellectual Property Security Agreement
    dated as of July 27, 1999 by the Borrowers and the Guarantors to the Agent,
    and any additional Intellectual Property Security Agreements by the
    Borrowers and the Guarantors to the Agent delivered pursuant to Section
    7.19 hereof, as hereafter modified, amended or supplemented from time to
    time.

    "Intercompany
    Accounts" means Accounts of Miller Towing with respect to which a
    Foreign Subsidiary located in Canada is the Account Debtor.

    "Intercompany Security
    Documents" means each security agreement, pledge agreement, financing
    statement and other agreement, document and instrument, in each case
    executed by a Foreign Subsidiary located in Canada in favor of Miller
    Towing, securing the repayment of any Intercompany Account, such documents
    to be (a) in form and substance acceptable to the Agents and (b)
    collaterally assigned to the Agent pursuant to the Intercompany Security
    Documents Assignment.

  



     

10



 

     


  
    "Intercompany Security
    Documents Assignment" means the Collateral Assignment of Security
    Documents executed by Miller Towing in favor of the Agent for the benefit of
    itself and the Lenders, in form and substance acceptable to the Agents.

    "Intercreditor
    Agreement" means the Intercreditor and Subordination Agreement dated as
    of the date hereof by and between the Agent, for the benefit of itself and
    the Lenders, and the Senior Agents.

    "Lending Office"
    means, for each Lender, the "Lending Office" of such Lender (or of
    an affiliate of such Lender) designated 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.

    "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 the
    Term Loan.

    "Loan Documents"
    means this Agreement, the Notes, the Guaranty, the Security Instruments, the
    Intercreditor Agreement, the VINtek Agreement, the Warrant Agreement, the
    Warrants, 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 Loan 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 or the Lenders) party to any of the Loan Documents.

    "Location" means,
    with respect to any operating place of business of Miller or any Subsidiary,
    the physical location thereof and all assets used in connection therewith.

    "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 7.1(a) or 7.1(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 7.1(a) or
    7.1(b)).

    "Miller" means
    Miller Industries, Inc., a Tennessee corporation having its principal place
    of business in Ooltewah, Tennessee.

  



     

     

11



 

     


  
    "Miller Borrowers"
    means "Miller Borrowers" as defined in the Senior Credit
    Agreement.

    "Miller Financial"
    means Miller Financial Services Group, Inc., a Tennessee corporation and the
    direct wholly-owned subsidiary of Miller.

    "Miller Towing"
    means Miller Industries Towing Equipment, Inc., a Delaware corporation and
    wholly owned subsidiary of Miller having its principal place of business in
    Ooltewah, Tennessee.

    "Minimum Disposition
    Value" means, with respect to any asset (i) which is sold by the
    Borrowers in connection with an Asset Disposition, or (ii) with respect to
    which the Lien in favor of the Agent (on behalf of itself and the Lenders)
    and the Senior Agents (on behalf of itself and the Senior Lenders and the
    Senior L/C Issuer) is released in connection with any Debt Offering, the Net
    Proceeds received by the Borrowers in respect thereof, less the sum
    of (a) the Senior Collateral Value of such asset, if any, and (b) the amount
    of Required Payments with respect to such asset, if any.

    "Moody’s" means
    Moody’s Investors Service, Inc.

    "Mortgages" means,
    collectively, all Mortgages, Deeds of Trust and Deeds to Secure Debt or
    other comparable instrument granting a Lien to the Agent (or a trustee for
    the benefit of the Agent) for the benefit of the Lenders in Collateral
    constituting real property and fixtures, as such documents may be amended,
    modified or supplemented from time to time.

    "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.

    "Navistar Intercreditor
    Agreement" means that certain Intercreditor Agreement executed or to be
    executed by and among the Agent, the Senior Agents, and Navistar Financial
    Corporation documenting the terms previously disclosed to the Lenders and
    related terms ancillary thereto.

    "Navistar Consignment
    Agreement" means that certain Consignment and Sales Agreement by and
    among the Navistar International Transportation Corp., Lee Smith, Inc., and
    Miller Towing documenting the terms previously disclosed to the Lenders and
    related terms ancillary thereto.

    "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,
    without duplication, (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, without duplication, (i) commissions and other
    reasonable and customary transaction costs, fees and expenses properly
    attributable to such Asset Disposition and payable by the Borrowers in
    connection therewith (in each case, paid to non-Affiliate third parties),
    (ii) transfer taxes applicable to such Asset Disposition,
    (iii) amounts payable to holders of Liens senior to the Liens of the
    Agent (for the benefit of itself and the Lenders) and the Liens of the
    Senior Agents (for the benefit of themselves and the Senior Lenders and the
    Senior L/C Issuer (to the extent such Liens constitute Permitted Liens
    hereunder), if any, and (iv) an appropriate reserve for income taxes in
    accordance with GAAP in connection therewith.

  



     

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    "Notes" means,
    collectively, the promissory notes of the Borrowers evidencing the Loan
    executed and delivered to the Lenders substantially in the form of Exhibit
    D, as amended, restated, modified, or supplemented.

    "Obligations"
    means the obligations, liabilities and Indebtedness of the Borrowers or
    either of them with respect to (i) the principal and interest on the Loan as
    evidenced by the Notes, (ii) all liabilities of the Borrowers or either of
    them to any Lender which arise under a Swap Agreement, and (iii) the payment
    and performance of all other obligations, liabilities and Indebtedness of
    the Borrowers or either of them to the Lenders or the Agent hereunder, under
    any one or more of the other Loan Documents or with respect to the Loan.

    "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.

    "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, at any date, the total amount of Term Loan Outstandings on such date.

    "Partially-Owned
    Subsidiary" means a Subsidiary in which Miller or one of Miller’s
    Subsidiaries owns less than 100% of the equity interest.

    "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
    Indebtedness" has the meaning assigned to such term in Section 8.4
    hereof.

    "Permitted Liens"
    has the meaning assigned to such term in Section 8.3 hereof.

  



     

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    "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 delivered pursuant to the terms of the
    Existing Credit Agreement between Miller and the Agent, (ii) that certain
    Stock Pledge Agreement delivered pursuant to the terms of the Existing
    Credit Agreement between certain Domestic Subsidiaries and the Agent, (iii)
    any Pledge Agreement, Share Charge, Debenture or similar instrument in form
    and substance reasonably acceptable to the Agent whereby Miller or a
    Domestic 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 7.19, 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.

    "Post-Disposition
    Availability Requirement" means (i) $10,000,000 at any time prior to
    the sale of RoadOne Borrower Assets having a Senior Collateral Value, in the
    aggregate, greater than or equal to $35,976,338 and (ii) at any time
    thereafter, $9,000,000.

    "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 Bank of
    America as its prime rate, which rate may not be the lowest rate of interest
    charged by Bank of America to its customers.

    "Principal Office"
    means the principal office of Bank of America located at Bank of America, N.
    A., 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.

    "Prior Loan
    Documents" has the meaning ascribed thereto in Section 1.3
    hereof.

    "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.

  



     

14



 

     


  
    "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, 100% of the Lenders on such date.

    "Required
    Payments" means "Required Payments" as defined in the
    Intercreditor Agreement.

    "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 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.

    "RoadOne
    Borrowers" means "RoadOne Borrowers" as defined in the Senior
    Credit Agreement.

    "RoadOne Borrower
    Assets" means assets owned by any of the RoadOne Borrowers.

    "S&P" means
    Standard & Poor’s Ratings Group, a division of The McGraw-Hill
    Companies, Inc.

    "Security
    Agreement" means, collectively (or individually as the context may
    indicate), (i) the Security Agreement dated as of July 27, 1999 delivered
    pursuant to the terms of the Existing Credit Agreement by the Borrowers and
    Guarantors to the Agent, and (ii) any additional Security Agreement
    delivered to the Agent pursuant to the terms hereof, including Section
    7.19, as hereafter modified, amended or supplemented from time to time.

    "Security
    Instruments" means the Pledge Agreement, the Collateral Assignment of
    Interests, the Guaranty, the Security Agreement, the Intellectual Property
    Security Agreement, the Mortgages, the Assignment of Leases, the Assignment
    of Mortgage, the Intercompany Security Documents Assignment, any UCC-1
    Financing Statements, charges, 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.

    "Senior Agents"
    means the Senior Collateral Agent and the Senior Existing Titled Collateral
    Agent.

    "Senior Borrowing
    Base" means the "Borrowing Base" as defined in the Senior
    Credit Agreement.

    "Senior
    Collateral Agent" means The CIT
    Group/Business Credit, Inc., as Collateral Agent for the
    Senior Lenders and the Senior L/C Issuer under the Senior Credit Agreement.

    "Senior Collateral
    Value" means, at the time of computation thereof, with respect to any
    asset of either of the Borrowers or any Subsidiary, the amount, in dollars,
    included in the Senior Borrowing Base at such date attributable to such
    asset, if any, or with respect to owned real estate and equipment not
    included in the Senior Borrowing Base, the amount advanced by the Senior
    Lenders on the Closing Date with respect to such real estate or equipment
    pursuant to the term loan portion of the Senior Facility, if any.

  



15



 

     


  
    "Senior Credit
    Agreement" has the meaning ascribed thereto in the recitals hereof and shall include any and all amendments, supplements, restatements
    or refinancings thereof.

    "Senior
    Existing Titled Collateral Agent" means, Bank of America, as Existing
    Titled Collateral Agent for the Senior Lenders and the Senior L/C Issuer
    under the Senior Credit Agreement.

    "Senior Facility"
    has the meaning ascribed thereto in the recitals hereof and shall include
    any amendment, restatement, refinancing or replacement thereof that does not
    violate Section 8.19 hereof.

    "Senior Lenders"
    means the lenders party to the Senior Credit Agreement.

    "Senior
    L/C Issuer" shall mean Bank of America, as the Senior Letter of Credit
    Issuer under the Senior Credit Agreement.

    "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.

    "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 July 23, 2003.

    "Subordinated
    Indebtedness" means all Indebtedness that is subordinated to the Term
    Loan 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.

    "Term Loan" means
    the loan made pursuant to the Term Loan Facility in accordance with Article
    II.

    "Term Loan
    Facility" means the facility described in Article II providing
    for a Term Loan to the Borrower by the Lenders in the original principal
    amount of $14,000,000.

    "Term Loan Outstandings"
    means, as of any date of determination, the aggregate principal amount of
    the Term Loan then outstanding and all interest accrued thereon.

    "Term Loan Termination
    Date" means (i) the Stated Termination Date or (ii) such earlier date
    of termination of Lenders’ obligations pursuant to Section 9.1 upon
    the occurrence of an Event of Default, or

  



     

16



 

     


  
     (iii) such date as the Borrower
    may voluntarily and permanently terminate the Term Loan Facility by payment
    in full of all Obligations incurred in connection with the Term Loan.

    "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 Commitment"
    means a principal amount equal to $14,000,000.

    "Transition Date"
    means "Transition Date" as defined in the Senior Credit Agreement,
    as in effect on the date hereof.

    "VINtek" means
    VINtek, Inc.

    "VINtek Agreement"
    means that certain Custodial Administration Agreement dated as of the date
    hereof, among the Agent, the Senior Agents, the Borrowers, the Guarantors,
    and VINtek.

    "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.

    "Warrant
    Agreement" means that certain Warrant Agreement by Miller in favor of
    the Lenders, substantially in the form of Exhibit G attached hereto
    and incorporated herein by reference, as the same may be modified, amended
    or supplemented from time to time.

    "Warrants"
    has the meaning given such term in Section 2.9(b).

  



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.

(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.

17



 

(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.

1.3       Amendment and Restatement.
The Borrowers, the Agent and the Lenders hereby agree that upon the
effectiveness of this Agreement, the terms and provisions of the Existing Credit
Agreement which in any manner govern or evidence the Obligations, the rights and
interests of the Lenders and any terms, conditions or matters related to any of
the foregoing, shall be and hereby are amended and restated in their entirety by
the terms and provisions of this Agreement and the terms and conditions of the
Existing Credit Agreement shall be superseded by this Agreement, except as
expressly provided herein.

Notwithstanding the amendment
and restatement of Existing Credit Agreement and certain of the related
"Loan Documents" as defined in the Existing Credit Agreement (the
"Prior Loan Documents") by this Agreement and the other Loan Documents
as herein defined, all of the continuing indebtedness, liabilities and
obligations owing by the Borrowers under the Existing Credit Agreement shall
continue as Obligations hereunder and shall be and remain secured by the
Security Instruments for the benefit of the Agent and the Lenders. This
Agreement is given as a substitution of, and not as a payment of, the
indebtedness, liabilities and obligations of the Borrower under the Existing
Credit Agreement and is not intended to constitute a novation thereof or of any
of the other Prior Loan Documents.

 

18



 

 

ARTICLE II


The Term Loan


2.1.         Term
Loan; Payment of Principal.   Subject to the terms and conditions of this Agreement, the remaining outstanding
balance of the Existing Facility that is not repaid from the proceeds of the
initial funding of the Senior Facility shall be deemed to be Term Loans made by
the Lenders hereunder in accordance with their respective Applicable Commitment
Percentages; provided that the aggregate amount of the Term Loans shall not
exceed the amount of the Term Loan Facility. Borrowers shall cause the proceeds
of the initial extensions of credit under the Senior Facility to be used on the
closing date thereof to reduce the Existing Facility.
In addition to any optional or mandatory prepayments as specified herein, the
Borrowers shall make scheduled quarterly payments of principal on the Term Loans
in one of the following three ways, as applicable (provided no principal
payment shall be required to be made which would cause Excess Availability to be
less than the Post-Disposition Availability Requirement after giving effect to
such payment):

(i)       In the event Miller has
elected to change its Fiscal Year to a calendar fiscal year:


  
    (a)       On or before April 5,
    2002, a principal payment equal to $875,000, provided Miller and its
    Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not less
    than 1.15 to 1.00, after giving effect to such payment, (I) for the
    eight-month Period ending on December 31, 2001, as shown by audited
    financial reports (conforming to the requirements of Section 7.1(a))
    to be delivered to the Agent on or before March 31, 2002 covering the period
    of eight months beginning May 1, 2001 and ending December 31, 2001, and (II)
    for the Four-Quarter Period ending on December 31, 2001, as shown
    collectively by the audited financial reports delivered under (I) above and
    interim financial reports (conforming to the requirements of Section
    7.1(b)) to be delivered to the Agent on or before March 15, 2002
    covering the four-month period beginning January 1, 2001 and ending April
    30, 2001; and

    (b)      On or before May 20,
    2002, a principal payment equal to $875,000, provided Miller and its
    Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not less
    than 1.15 to 1.00 for the Four-Quarter Period ending on March 31, 2002 as
    shown on the interim financial reports required to be delivered to the Agent
    on or before May 15, 2002 pursuant to Section 7.1(b) hereof, after
    giving effect to such payment; and

    (c)       On or before August 20,
    2002, a principal payment equal to $875,000, provided Miller and its
    Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not less
    than 1.15 to 1.00 for the Four-Quarter Period ending on June 30, 2002 as
    shown on the interim financial reports required to be delivered to the Agent
    on or before August 15, 2002 pursuant to Section 7.1(b) hereof, after
    giving effect to such payment; and

    (d)       On or before November
    20, 2002, a principal payment equal to $875,000, provided Miller and
    its Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not
    less than 1.15 to 1.00 for the Four-Quarter Period ending on September 30,
    2002 as shown on the interim financial reports required to be delivered to
    the Agent on or before November 15, 2002 pursuant to Section 7.1(b)
    hereof, after giving effect to such payment; and

    (e)       On or before April 5,
    2003, a principal payment equal to $875,000, provided Miller and its
    Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not less
    than 1.15 to 1.00 for the Four-Quarter Period ending on December 31, 2002 as
    shown on the audited financial reports required to be delivered to the Agent
    on or before March 31, 2003 pursuant to Section 7.1(a) hereof, after
    giving effect to such payment; or

    

  


(ii)       In the event Miller has
elected to change its Fiscal Year to the twelve month fiscal period beginning
February 1 of each calendar year and ending January 31 of each calendar year:

 

    19



 

 


  
    (a)       On or before May 5,
    2002, a principal payment equal to $875,000, provided Miller and its
    Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not less
    than 1.15 to 1.00, after giving effect to such payment, (I) for the
    nine-month Period ending on January 31, 2002, as shown by audited financial
    reports (conforming to the requirements of Section 7.1(a)) to be
    delivered to the Agent on or before April 30, 2002 covering the period of
    three fiscal quarters beginning May 1, 2001 and ending January 31, 2002, and
    (II) for the Four-Quarter Period ending on January 31, 2002, as shown
    collectively by the audited financial reports delivered under (I) above and
    interim financial reports (conforming to the requirements of Section
    7.1(b)) to be delivered to the Agent on or before March 15, 2002
    covering the three-month period beginning February 1, 2001 and ending April
    30, 2001; and

    (b)       On or before June 20,
    2002, a principal payment equal to $875,000, provided Miller and its
    Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not less
    than 1.15 to 1.00 for the Four-Quarter Period ending on April 30, 2002 as
    shown on the interim financial reports required to be delivered to the Agent
    on or before June 15, 2002 pursuant to Section 7.1(b) hereof, after
    giving effect to such payment; and

    (c)       On or before September
    20, 2002, a principal payment equal to $875,000, provided Miller and
    its Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not
    less than 1.15 to 1.00 for the Four-Quarter Period ending on July 31, 2002
    as shown on the interim financial reports required to be delivered to the
    Agent on or before September 15, 2002 pursuant to Section 7.1(b)
    hereof, after giving effect to such payment; and

    (d)       On or before December
    20, 2002, a principal payment equal to $875,000, provided Miller and
    its Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not
    less than 1.15 to 1.00 for the Four-Quarter Period ending on October 31,
    2002 as shown on the interim financial reports required to be delivered to
    the Agent on or before December 15, 2002 pursuant to Section 7.1(b)
    hereof, after giving effect to such payment; and

    (e)       On or before May 5,
    2003, a principal payment equal to $875,000, provided Miller and its
    Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not less
    than 1.15 to 1.00 for the Four-Quarter Period ending on January 31, 2003 as
    shown on the audited financial reports required to be delivered to the Agent
    on or before April 30, 2003 pursuant to Section 7.1(a) hereof, after
    giving effect to such payment; or

    

  


(iii)       In the event Miller has
elected not to change its Fiscal Year:


  
    (a)       On or before May 5,
    2002, a principal payment equal to $875,000, provided Miller and its
    Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not less
    than 1.15 to 1.00, after giving effect to such payment, (I) for the
    nine-month Period ending on January 31, 2002, as shown by audited financial
    reports (conforming to the requirements of Section 7.1(a)) to be
    delivered to the Agent on or before April 30, 2002 covering the period of
    three fiscal quarters beginning May 1, 2001 and ending January 31, 2002, and
    (II) for the Four-Quarter Period ending on January 31, 2002, as shown
    collectively by the audited financial reports delivered under (I) above and
    interim financial reports (conforming to the requirements of Section
    7.1(b)) to be delivered to the Agent on or before March 15, 2002
    covering the three-month period beginning February 1, 2001 and ending April
    30, 2001; and

    (b)       On or before August 5,
    2002, a principal payment equal to $875,000, provided Miller and its
    Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not less
    than 1.15 to 1.00 for the Four-Quarter Period ending on April 30, 2002 as
    shown on the audited financial reports required to be delivered to the Agent
    on or before July 31, 2002 pursuant to Section 7.1(a) hereof, after
    giving effect to such payment; and

    (c)       On or before September
    20, 2002, a principal payment equal to $875,000, provided Miller and
    its Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not
    less than 1.15 to 1.00 for the Four-Quarter Period ending on July 31, 2002
    as shown on the interim financial reports required

  



     

    20



 

     


  
    to be delivered to the
    Agent on or before September 15, 2002 pursuant to Section 7.1(b)
    hereof, after giving effect to such payment; and

    (d)       On or before December
    20, 2002, a principal payment equal to $875,000, provided Miller and
    its Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not
    less than 1.15 to 1.00 for the Four-Quarter Period ending on October 31,
    2002 as shown on the interim financial reports required to be delivered to
    the Agent on or before December 15, 2002 pursuant to Section 7.1(b)
    hereof, after giving effect to such payment; and

    (e)       On or before March 20,
    2003, a principal payment equal to $875,000, provided Miller and its
    Subsidiaries maintain a Consolidated Fixed Charge Coverage Ratio of not less
    than 1.15 to 1.00 for the Four-Quarter Period ending on January 31, 2003 as
    shown on the interim financial reports required to be delivered to the Agent
    on or before March 15, 2003 pursuant to Section 7.1(b) hereof, after
    giving effect to such payment.

  



In the event that Miller and its
Subsidiaries should fail to maintain the Consolidated Fixed Charge Coverage
Ratio required to be maintained, as described above, or should fail to maintain
Excess Availability of greater than or equal to the Post-Disposition
Availability Requirement, in each case prior to making (and after giving effect
to) any principal prepayment otherwise required as described above, Borrowers
shall be required to make a partial principal payment equal to the lesser of (i)
the maximum amount which would be allowable in order to cause the Consolidated
Fixed Charge Coverage Ratio (calculated as described above), after giving effect
to such partial payment, to be equal to 1.15 to 1.00, and (ii) the maximum
amount which would be allowable in order cause Excess Availability to be equal
to the Post-Disposition Availability Requirement. All unpaid amounts of any
scheduled principal payments, together with any unpaid amounts of mandatory
principal prepayments under Section 2.7(iii), shall be added to the
amount of the next following scheduled principal payment and shall be due and
payable therewith, so long as the Consolidated Fixed Charge Coverage Ratio
(calculated as described above), after giving effect to such scheduled payment
(as increased) is greater than or equal to 1.15 to 1.00, and so long as Excess
Availability, after giving effect to such scheduled payment (as increased) is
greater than or equal to the Post-Disposition Availability Requirement. The
entire unpaid principal amount of Outstandings shall be due and payable in full
on the Term Loan Termination Date.

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 the Loan made by such Lender at the then
    applicable Base Rate; provided, however, that if any amount
    shall not be paid when due (at maturity, by acceleration or otherwise, but
    excluding when any such payment is a principal payment which is not
    permitted to be made pursuant to the terms of the Intercreditor Agreement)
    or if any other Event of Default shall have occurred and be continuing
    hereunder, all amounts outstanding hereunder shall bear interest thereafter
    at the Default Rate from the date such Event of Default occurred until the
    date such Event of Default is cured or waived; provided that interest
    shall accrue at the Default Rate on any such past due amount but shall not
    be payable if the Lenders or the Agent are not permitted to receive payment
    of such amount under the terms of the Intercreditor Agreement.

    (b)       Interest shall be
    computed on the basis of a year of 365/366 days, and in each case calculated
    for the actual number of days elapsed. Interest on the Loan shall be paid (i)
    monthly in arrears on the last Business Day of each month commencing July
    31, 2001 and (ii) on the Term Loan Termination Date.

  



2.3.       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 Term
    Loan, 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 such payment of principal prior to 11:00 A.M. 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.

  



     

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    (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 evidencing the Term Loan 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; provided that interest
    shall continue to accrue during the period of any such extension.

  



2.4.       Notes. The portion
of the Term Loan made by each Lender shall be evidenced by a Note in
substantially the form of Exhibit D payable to the order of such Lender
in the respective amount of its Applicable Commitment Percentage of the Total
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. Each Note (and any note or other instrument issued
as a full or partial substitution or replacement therefor) shall contain the
subordination legend set forth on the Form of Note attached as Exhibit D.

2.5.       Pro Rata Payments.
Except as otherwise provided herein, (a) each payment on account of the
principal of and interest on the Term Loan and fees payable under Section 2.9
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.

2.6.       Optional Prepayments.
Subject to the terms and conditions of the Senior Credit
Agreement and the Intercreditor Agreement, the
Borrower may prepay the Term Loan in whole or in part from time to time on any
Business Day, without penalty or premium, upon at least three (3) Business Days’
telephonic notice from an Authorized Representative (effective upon receipt) to
the Agent prior to 10:30 A.M., which notice shall be irrevocable. The Authorized
Representative shall provide the Agent written confirmation of each such
telephonic notice but failure to provide such confirmation shall not affect the
validity of such telephonic notice. Any prepayment, shall be made at a
prepayment price equal to (i) the amount of principal to be prepaid, plus (ii)
all accrued and unpaid interest on the amount so prepaid, to the date of
prepayment.

2.7.       Mandatory Prepayments.
In addition to the required payments of principal of the Loan set forth in Section
2.1 and any optional payments of principal of the Term Loan effected under Section
2.6, and subject to the terms and conditions of the Senior Credit Agreement
and the Intercreditor Agreement, the Borrower shall make the following required
prepayments of the Loan, 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 which constitutes
    "Permitted Refinancing Stock" as defined in the Senior Credit
    Agreement 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.

  



     

    22



 

     


  
    (ii)       Debt Offerings.
    Miller shall make, or shall cause each applicable Subsidiary to make, a
    prepayment in an amount equal to the Minimum Disposition Value of any asset
    or assets with respect to which the Agent (on behalf of itself and the
    Lenders) and each Senior Agent (on behalf of itself and the Senior Lenders
    and the Senior L/C Issuer) release the Lien in their favor in connection
    with any Debt Offering. Each such prepayment shall be made within five (5)
    Business Days of receipt of any Net Proceeds from such Debt Offering 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.
    In the event of any Asset Disposition by Miller or any Subsidiary (other
    than Asset Dispositions in an amount not in excess of $100,000 which do not
    involve the sale of all or substantially all of the assets of any single
    Location), Miller shall make, or shall cause each applicable Subsidiary to
    make, a prepayment in connection with any Asset Disposition in an amount
    equal to the Minimum Disposition Value of the asset being disposed of, so
    long as Miller and its Subsidiaries maintain Excess Availability of greater
    than or equal to the Post-Disposition Availability Requirement after giving
    effect to such payment; provided if Miller and its Subsidiaries
    should fail to maintain Excess Availability of greater than or equal to the
    Post-Disposition Availability Requirement prior to making (and after giving
    effect to) any principal prepayment otherwise required as described above,
    Borrowers shall be required to make a partial prepayment equal to the
    maximum amount which would be allowable in order to cause Excess
    Availability to be equal to the Post-Disposition Availability Requirement.
    Each such prepayment shall be made within five (5) Business Days of receipt
    of any proceeds of such Asset Disposition 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 such prepayment.
    All unpaid amounts of any principal prepayments otherwise required to be
    paid but for the proviso at the end of the first sentence of this subsection
    (iii) shall be added to the amount of the next following scheduled principal
    payment under Section 2.1 hereof, and shall be due and payable
    therewith, so long as the Consolidated Fixed Charge Coverage Ratio
    (calculated as described in Section 2.1), after giving effect to such
    scheduled payment (as increased hereby) is greater than or equal to 1.15 to
    1.00, and so long as Excess Availability, after giving effect to such
    scheduled payment (as increased hereby) is greater than or equal to the
    Post-Disposition Availability Requirement.

  



All mandatory prepayments made
and allocable to the Term Loan Facility pursuant to this Section 2.7
shall be applied to the principal amount remaining outstanding under the Term
Loan (as adjusted to give effect to any prior payments or prepayments of
principal) and shall be accompanied by payment by the Borrowers of accrued and
unpaid interest on the amounts prepaid.

2.8.       Use of Proceeds. The
proceeds of the Loan shall be used by the Borrowers and Guarantors together with
the proceeds of the Senior Facility, to pay certain of the outstanding
indebtedness under the Existing Credit Facility, and for general working capital
needs, capital expenditures and other corporate purposes.

2.9.       Commitment Fee; Warrants.


  
    (a)       If there are
    Outstandings on the first Business Day that occurs six (6) months, twelve
    (12) months, eighteen (18) months, or twenty-four (24) months after the
    Closing Date, the Borrowers agree to pay to the Agent, for the pro rata
    benefit of the Lenders based on their Applicable Commitment Percentages, on
    the Term Loan Termination Date a commitment fee equal to the Commitment Fee
    Rate for each such date multiplied by the total amount of Outstandings on
    each such date.

    (b)       The Borrowers agree to
    provide to the Lenders pursuant to the Warrant Agreement, based on their
    Applicable Commitment Percentages, exercisable stock warrants in form and
    substance satisfactory to the Agent and the Lenders (the
    "Warrants"), as follows:

    
      
        (i)       On or before the
        fifth Business Day one year after the Closing Date (the "One-Year
        Anniversary"), Warrants granting the number of shares of common
        stock of Miller equal to the product of (A) the aggregate
        outstanding principal balance of the Term Loans as of the One-Year
        Anniversary divided by the Total Commitment, times (B)
        0.5% of the number of outstanding shares of common stock of Miller as of
        the One-Year

      

    

  



         

    23



 

         


  
    
      
        Anniversary. The exercise price for the shares granted by
        such Warrants shall be equal to the average closing price of such shares
        on the New York Stock Exchange or other principal securities market on
        which such shares are then traded (the "Exchange") for the
        twenty (20) consecutive trading days prior to the One-Year Anniversary,
        or if such shares are no longer listed on the Exchange, such price as is
        determined under the terms of the Warrant Agreement and the Warrants.
        Such Warrants must be exercised not later than seven (7) years after the
        Closing Date.

        (ii)       On or before the
        fifth Business Day two years after the Closing Date (the "Two-Year
        Anniversary"), Warrants granting the number of shares of common
        stock of Miller equal to the product of (A) the aggregate
        outstanding principal balance of the Term Loans as of the Two-Year
        Anniversary divided by the Total Commitment, times (B)
        1.5% of the number of outstanding shares of common stock of Miller as of
        the Two-Year Anniversary. The exercise price for the shares granted by
        such Warrants shall be equal to the average closing price of such shares
        on the Exchange for the twenty (20) consecutive trading days prior to
        the Two-Year Anniversary, or if such shares are no longer listed on the
        Exchange, such price as is determined under the terms of the Warrants.
        Such Warrants must be exercised not later than eight (8) years after the
        Closing Date.

      

    

  



         

         

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ARTICLE III


Security


3.1.        Ratification of Existing
Security Instruments. The Borrowers and Guarantors hereby acknowledge and
agree that the Obligations hereunder shall be and remain secured by the Liens
and security interests created or granted by the existing Security Instruments
for the benefit of the Agent and the Lenders, and shall remain perfected by the
existing filings and recordations made in favor of the Agent for the benefit of
the Lenders.

3.2.       Assignment of Mortgage;
Intercompany Security Documents Assignment . The Borrowers hereby agree to
execute and deliver or cause to be executed and delivered the Assignment of
Mortgage and the Intercompany Security Documents Assignment.

3.3.       Guaranty. 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
7.19. The Borrowers and the Guarantors further acknowledge and agree that
the Obligations hereunder shall be and remain guaranteed by the Guarantors under
the Guaranties executed by them pursuant to the Existing Credit Agreement.

3.4.       Stock Pledge. 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 7.19.

3.5.       Security Interests.
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
7.19 hereof.

3.6.       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.

3.7.       Intercreditor Matters.
Each Lender from time to time party hereto, the Agent and the Borrowers hereby
consent to and agree with the terms of the Intercreditor Agreement and such
Lenders hereby (i) acknowledge and agree that each Obligation (including
Obligations arising with respect to the Guaranty) now existing or hereafter
arising and each Lien in all Collateral now owned or hereafter acquired and all
remedies available with respect to such Obligation or Collateral are subject to
the terms of the Intercreditor Agreement, and (ii) direct the Agent on their
behalf to enter into the Intercreditor Agreement and irrevocably consents to the
service by Bank of America in the capacity of Junior Agent and Senior Existing
Titled Collateral Agent under the terms of the Intercreditor Agreement and the
Senior Credit Agreement.

ARTICLE IV


Change in Circumstances


4.1.       Increased Cost and
Reduced Return. (a) 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 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

 

    25



 

 

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.

(b)       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 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.

4.2.       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 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 4.6) 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 10.2, 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 4.6) 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 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

 

    26



 

 

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 4.6(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 4.6(a) or 4.6(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 4.2, then such Lender will agree to use reasonable
efforts to change the jurisdiction of its 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 4.2 shall survive
the payment in full of the Notes.

4.3.       Lending Office.
Without affecting its rights under this Article IV 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 which the
Borrowers would be obligated to compensate such Lender pursuant to this Article
IV, 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.

 

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ARTICLE V


Conditions to Making Loan


5.1.       Conditions of Making
Loan. The obligations of the Lenders to make the Loan available are subject
to the conditions precedent that:


  
    (a)       the Agent shall have
    received on or prior to 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 Guaranty, the Security
        Instruments, the Intercreditor Agreement and the other Loan Documents
        (other than the Warrants), 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 E 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;

        (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)       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;

        (x)       receipt and
        satisfactory review of final executed versions of all documents
        governing or evidencing the Senior Facility;

        (xi)       receipt and
        satisfactory review of consolidated interim financial statements of
        Miller and its Subsidiaries as of April 30, 2001;

      

    

  



         

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        (xii)       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, 2000;

        (xiii)       notice of
        appointment of the initial Authorized Representative(s);

        (xiv)       all schedules to
        the Credit Agreement and the other Loan Documents which shall be
        reviewed by and satisfactory to the Agent;

        (xv)       evidence that all
        fees and expenses payable on the Closing Date by the Borrowers to the
        Agent and the Lenders in connection herewith and with the Existing
        Credit Agreement (except as otherwise provided by Section 7.24
        hereof) have been paid in full;

        (xvi)       Uniform Commercial
        Code search results with respect to all Loan Parties other than
        Immaterial Subsidiaries showing only Permitted Liens;

        (xvii)       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 or second priority
        Lien (as applicable in accordance with the terms hereof and of the
        Intercreditor Agreement) as to items of Collateral in which a security
        interest may be perfected by the filing of financing statements and for
        which financing statements have not yet been filed to the Agent’s
        satisfaction;

        (xviii)       evidence
        satisfactory to the Agent that the Borrowers have entered into, together
        with all other parties thereto including the Senior Agents and the
        Senior Lenders, the Senior Credit Agreement, satisfactory in form and
        substance to the Agent and the Lenders, that all conditions precedent to
        the initial extensions of credit thereunder have been fulfilled (other
        than the effectiveness of this Agreement), and that proceeds thereof
        have been received by the Agent and the Lenders in an amount of
        $82,180,570.84 and applied to the repayments of outstanding Indebtedness
        of the Borrowers in favor of the Agent and the Lenders under the
        Existing Facility;

        (xix)       a certified copy
        of all Intercompany Security Documents, and such other documents,
        instruments, certificates and opinions (including opinions of foreign
        counsel with respect to the liens of Miller Towing under the
        Intercompany Security Documents, if required by the Agent) as the Agent
        or any Lender may reasonably request in connection with the above,
        including the due perfection of a first or second priority security
        interest (as applicable in accordance with the terms hereof and of the
        Intercreditor Agreement) in the Intercompany Security Documents; and

        (xx)       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 or second priority security interest (as applicable in accordance
        with the terms hereof and of the Intercreditor Agreement) 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;

      

    

  



         

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        (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.

         

      

    

  



         

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ARTICLE VI


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 the Loan), that:

6.1.       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).

  



6.2.       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;

    (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.

  



6.3.
      Solvency. Each Loan
Party is Solvent after giving effect to the transactions contemplated by the
Loan Documents and the Senior Facility.

 

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6.4.       Subsidiaries and
Stockholders. Miller has no Subsidiaries other than those Persons listed as
Subsidiaries in Schedule 6.4 and additional Subsidiaries created or
acquired after the Closing Date in compliance with Section 7.19; Schedule
6.4 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 6.4, free and
clear of any Lien other than Permitted Liens.

6.5.       Ownership Interests.
Miller owns no interest in any Person other than the Persons listed in Schedule
6.4, equity investments in Persons not constituting Subsidiaries permitted
under Section 8.6 and additional Subsidiaries created or acquired after
the Closing Date in compliance with Section 7.19.

6.6.       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, 2000, 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 April 30, 2001, 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;

    (b)       since April 30, 2000,
    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 6.6(a) or in Schedule
    6.6 or permitted by Section 8.4, 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.

  



6.7.       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 6.7 and
transfer restrictions and Liens permitted by Section 8.3.

6.8.       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 6.6(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.

6.9.       Other Agreements. No
Loan Party nor any Subsidiary is

 

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    (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 or the Senior Agents,
    the Senior Lenders and the Senior L/C Issuer pursuant to the Senior Credit
    Agreement and the Intercreditor Agreement) 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.

  



6.10.
       Litigation. Except
as set forth in Schedule 6.10, there is no action, suit, investigation or
proceeding at law or in equity or by or before any governmental instrumentality
or 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 6.10, the Borrowers believe that none of
the matters, individually or in the aggregate, will have a Material Adverse
Effect.

6.11.       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 the Loan 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.

6.12.       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. &sec; 80a-1,
et seq.). The application of the proceeds of the Loan 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.

6.13.       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.

6.14.       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.

 

    33



 

 

6.15.       No Consents, Etc.
Neither the respective businesses or properties of the Loan Parties or any
Subsidiary, 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.

6.16.       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;

    (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;

  



     

    34



 

     


  
    (f)       The consummation of the
    Loan 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.

  



6.17.       No Default.
As of the date hereof, and after giving effect to the
consummation of this Agreement and the Senior Credit Agreement,
there does not exist any Default or Event of Default hereunder.

6.18.       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

(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.

6.19.       Employment Matters.     (a)     Except as set forth in Schedule 6.19, 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;

    6.20.       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 5.1, the security interests

 

    35



 

 

 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, subject to no other Liens
other than Permitted Liens.

 

 

    36



 

 

ARTICLE VII


Affirmative Covenants


Until the Facility Termination
Date, unless the Required Lenders shall otherwise consent in writing, the
Borrowers will, and where applicable will cause each Subsidiary to:

7.1.       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 (provided
the requirements of this subsection are not intended to limit any additional
reporting requirements contained in Section 2.1), and (ii) a certificate
of an Authorized Representative demonstrating compliance with Sections 8.1
and 8.4, which certificate shall be in the form of Exhibit F;

(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 7.1(a)(ii);

(c)       together with each delivery
of the financial statements required by Section 7.1(a)(i), deliver to the
Agent and each Lender a letter from Miller’s accountants specified in Section
7.1(a)(i) stating that in performing the audit necessary to render an
opinion on the financial statements delivered under Section 7.1(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)       as soon as practical and in
any event within thirty (30) days after the end of each month, deliver to the
Agent and each Lender current monthly cash flow projections and borrowing
projections under the Senior Facility through the Facility Termination Date;

(e)       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, (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;

(f)       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;

 

37



 

(g)       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; and

(h)       as soon as practical and in
any event within thirty (30) days after the end of each month, such financial
information as shall be required by Agent and Lenders in their reasonable
discretion.

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 11.1(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.

7.2.       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.

7.3.       Existence,
Qualification, Etc. Except as otherwise expressly permitted under Section
8.7, 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
8.5 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.

7.4.       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 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.

7.5.       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 7.5.

7.6.       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.

7.7.       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.

 

38



 

 

7.8.       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.

7.9.       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.

7.10.       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 Borrowers in Sections
7.2 through 7.9, 7.18, 7.19 and 7.20 inclusive;

7.11.       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 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.

7.12.       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.

7.13.       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.

7.14.       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.

7.15.       Indemnification.
Without limiting the generality or application of Section 11.9, the
Borrowers hereby agree to indemnify and hold the Agent, the Lenders, 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

 

39



 

 

Hazardous Materials by or on behalf of Miller or
any Subsidiary or on or with respect to property owned or leased 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 7.15 shall survive the Facility Termination
Date and expiration or termination of this Agreement.

7.16.       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.

7.17.       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
7.17(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 7.17(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

(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.

 

40



 

 

7.18.       Continued Operations.
Except as permitted under Section 8.7 or Section 8.12, 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.

7.19.       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 similar to the Guaranty
        Agreement delivered by the existing Domestic Subsidiaries;

        (ii)       a Security
        Agreement of such Domestic Subsidiary substantially similar to the
        Security Agreement delivered by the existing Domestic Subsidiaries,
        together with such Uniform Commercial Code financing statements on Form
        UCC-1 or otherwise duly executed by such Domestic Subsidiary as
        "Debtor" and naming the Agent for the benefit of the Agent and
        the Lenders as "Secured Party," in form, substance and number
        sufficient in the reasonable opinion of the Agent and its special
        counsel to be filed in all Uniform Commercial Code filing offices in all
        jurisdictions in which filing is necessary or advisable to perfect in
        favor of the Agent for the benefit of the Agent and the Lenders the Lien
        on Collateral conferred under such Security Instrument to the extent
        such Lien may be perfected by Uniform Commercial Code filing;

        (iii)       a Pledge Agreement
        executed by each such Domestic Subsidiary’s stockholders substantially
        similar to the Pledge Agreement delivered by the existing Domestic
        Subsidiaries, 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, in each case together with duly executed
        stock powers or powers of assignment in blank affixed thereto (but such
        certificates and related powers shall be delivered to the Senior
        Collateral Agent so long as the Senior Facility is in effect),
        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, Security Agreement, Pledge Agreement, and
        other Loan Documents provided for in this Section 7.19(a) and
        addressed to the Agent and the Lenders, in form and substance
        substantially identical to the opinion of counsel delivered pursuant to Section
        5.1(a)(ii) on the Closing Date (including opinions covering the
        Security Agreement and the validity and perfection of the liens created
        thereunder), 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 7.19(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 7.19(a); and

      

    

  



         

41



 

         


  
    
      
        (vii)       such other
        documents and agreements as may be reasonably requested by the Agent,
        including but not limited to (A) an agreement or instrument granting
        power of attorney to VINtek, and (B) if the Senior Facility is no longer
        in effect, a lockbox agreement or blocked account agreement in favor of
        the Agent, and any documents related thereto, in form and substance
        satisfactory to the Agent.

      

    

  



7.20.       Subsidiary Support of
Permitted Indebtedness. So long as not prohibited by law, and subject to the
terms and conditions of the Intercreditor Agreement, 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.

7.21.       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.

7.22.       Additional Collateral
Documents; Audit.


  
    (a)       Within sixty (60)
    days after (a) the acquisition by a Borrower or any Guarantor of any
    real property or (b) the lease to or by a Borrower or any Guarantor of any
    real property described in clause (xi), the Borrowers shall deliver, or
    shall cause the appropriate Guarantor to deliver, to the Agent the items
    listed in clauses (i) through (ix), as applicable, with respect to such real
    property or lease, to the satisfaction of the Agent (but only clauses (viii)
    and (ix) shall apply in the case of leased real property unless such
    property is subject to a Lien in favor of the Senior Collateral Agent):

    
      
        (i)       Mortgages, Deeds of
        Trust or other similar documentation necessary to grant to the Agent for
        the benefit of the Agent and the Lenders a lien on the real property
        owned by each Borrower and each Guarantor (collectively, the
        "Mortgages") (subject only to Permitted Liens);

        (ii)       Mortgagee title
        insurance policies from a title insurance company satisfactory to the
        Agent covering the Mortgages, in each case indicating the liens of the
        Mortgages are a second lien priority behind only the Senior Collateral
        Agent (for the benefit of itself and the Senior Lenders) (subject only
        to Permitted Liens), containing no exceptions to coverage not acceptable
        to the Agent and providing a revolving credit endorsement and other
        endorsements required by Agent for such policy;

        (iii)       Surveys for each
        of the properties covered by the Mortgages;

        (iv)       Certification as to
        whether the location of each property is within any "special flood
        hazard" area within the meaning of the Federal Flood Disaster
        Protection Act of 1973;

        (v)       Appraisals from a
        certified Appraiser selected by the Borrowers and acceptable to the
        Agent for each of the properties covered by the Mortgages;

        (vi)       Environmental
        Reports on all real property covered by a Mortgage from an environmental
        firm satisfactory to Agent showing no environmental hazards with respect
        to such real property;

        (vii)       Legal opinions
        from local counsel for the Borrowers with respect to the documents
        executed and delivered under this Section 7.22 and the perfection
        of the liens created thereby in form and substance satisfactory to the
        Agent;

      

    

  



         

42



 

         


  
    
      
        (viii)        Insurance
        policies or Certificates of Insurance, as the Agent may require,
        evidencing compliance by the Borrowers with the insurance requirements
        of this Agreement and the Security Instruments with respect to the
        properties covered by the Mortgages;

        (ix)       If any improvements
        (existing or proposed) on the real property covered by the Mortgages are
        or will be located in an area identified by the U.S. Department of
        Housing and Urban Development as an area having "special flood
        hazards," Borrowers shall furnish flood insurance acceptable to the
        Agent in an amount not less than the appraised value of the real
        property to be insured or if no appraisal for such property shall be
        obtained, in an amount acceptable to the Agent;

        (x)       UCC-11 search
        reports no older than thirty (30) days from the appropriate UCC filing
        office in the states where the Borrowers and Guarantors are doing
        business showing no liens or security interests on any assets of the
        Borrowers or Guarantors other than Permitted Liens;

        (xi)       With respect to
        each leased location on which inventory (other than motor vehicles) or
        equipment (other than motor vehicles) in an amount deemed material by
        the Agent is located, an Assignment of Leases with respect to all real
        property owned by a Borrower or Guarantor and leased to others and all
        real property not owned by a Borrower or Guarantor and leased to a
        Borrower or Guarantor, together with, (i) on a reasonable efforts basis
        by Borrowers and Guarantors, a Landlord Consent, Waiver and Estoppel
        Certificate (in form and substance satisfactory to the Agent and the
        Lenders) executed by each landlord or tenant as applicable, and (ii)
        local counsel opinions covering perfection of liens in jurisdictions in
        which the Agent deems necessary;

      

    

    
    provided
    that with respect to any real property which has a net book value of less
    than $150,000 (computed by aggregating the value of all contiguous or
    near-contiguous properties which together constitute a single functional
    unit), (A) the Borrowers shall not be required to deliver those items listed
    in clauses (ii), (iii), (v) and (vi), and (B) the Borrowers shall deliver to
    the Agent such documents and instruments as requested by the Agent to
    evidence that title to such property is held by a Borrower or Subsidiary and
    any exceptions to such title, including deeds and existing title insurance
    policies.

    (b)       Certificate of Title
    Property. The Borrowers agree that each will deliver, and will cause
    each Guarantor to deliver, the following, in the time periods specified
    therefor:

    
      
                (i)        Within
                twenty (20) days after the acquisition by a Borrower or any
                Subsidiary which is a party to a Security Agreement of any
                Certificate of Title Property acquired after the date hereof,
                the Borrowers will, and where applicable will cause each
                Subsidiary to: (a) execute such certificate of title as may be
                required to indicate the security interest of the Agent thereon;
                (b) complete and execute any applications for notation of the
                Agent’s security interest or other comparable forms required by
                the applicable state’s law in conjunction with the executed
                certificates of title in order to perfect the Lien of the Agent
                for the benefit of the Agent and the Lenders in the Certificate
                of Title Property; and (c) file at its expense the items in
                subsections (a) and (b), along with such other certificates,
                agreements, notices, or other comparable forms as may be
                necessary, with the appropriate Governmental Authority in the
                applicable jurisdiction in order to perfect such Lien.

                (ii)       The
                Borrower will cause the appropriate Governmental Authority to
                deliver directly to VINtek, or if delivered to a Borrower or any
                Subsidiary, cause to be delivered to VINtek within five (5)
                Business Days after receipt thereof from the appropriate
                Governmental Authority by a Borrower or Subsidiary, either the
                original certificate of title with the Agent’s Lien noted
                thereon or a newly issued certificate of title or comparable
                instrument, as applicable, with the Agent’s Lien

      

    

  



                 

  43

  

 

                 


  
    
      
                noted thereon,
                to be managed and administered in accordance with the VINtek
                Agreement.

                (iii)       The Agent
                and the Lenders agree that upon request of the Agent by the
                Borrowers, and subject to the consent of the Agent in accordance
                with the provisions hereof and of the Intercreditor Agreement,
                the Agent will act and will cooperate with VINtek, in accordance
                with the provisions of the Intercreditor Agreement, to
                effectuate a release of the Lien of the Agent and the Lenders
                with respect to certain Certificate of Title Property which is
                to be sold (subject to any mandatory prepayment applicable
                thereto).

      

    

    (c)       Field Audit. The
    Borrowers further acknowledge and agree that, prior to the Facility
    Termination Date, the Agent and its representatives may undertake from time
    to time further field audits and/or valuations of the inventory, equipment,
    accounts receivable, fixed assets, and field audits of the internal controls
    of the Borrowers and the Guarantors and that the costs and expenses of these
    audits and valuations shall be paid by the Borrowers. The Borrowers agree to
    cooperate and cause the Guarantors to cooperate with the Agent and its
    representatives to facilitate completion of all such audits and valuations.

    7.23       Senior Facility
    Notices. Borrowers shall deliver or cause to be delivered (i)
    simultaneously with delivery thereof to the Senior Agents or the Senior
    Lenders, a copy of any notices, reports, projections, certificates
    (including borrowing base certificates) or other documents or instruments
    required to be delivered by Borrowers or any of their Subsidiaries to the
    Senior Agents or the Senior Lenders in connection with the Senior Facility,
    and (ii) immediately upon receipt thereof from the Senior Agents or the
    Senior Lenders, a copy of any notices or other documents or instruments
    delivered by the Senior Agents or the Senior Lenders to the Borrowers in
    connection with the Senior Facility.

    7.24       Existing Facility
    Interest Payment. Not later than July 31, 2001, Borrowers shall pay to
    the Agent for the account of each Lender, in addition to any amounts
    otherwise due and payable hereunder, an amount equal to $640,377.14, which
    payments represent accrued and unpaid interest under the Existing Facility
    as of the Closing Date.

  



     

  44

  

 


  
     

  



ARTICLE VIII


Negative Covenants


Until the Facility Termination
Date, unless the Required Lenders shall otherwise consent in writing, Miller
shall not, nor shall it permit any Subsidiary to:

8.1.       Financial Covenants.


  
    (a)       Capital Expenditures.
    Make or incur any Capital Expenditure if, after giving effect thereto, the
    aggregate amount of all Capital Expenditures by the Borrowers and their
    Subsidiaries on a consolidated basis would exceed (a) $5,600,000 for the
    Fiscal Year ending on April 30, 2002, (b) $6,250,000 for the Fiscal Year
    ending on April 30, 2003, and (c) $6,750,000 for any Fiscal Year thereafter.

    (b)       Consolidated
    Fixed Charge Coverage Ratio. Permit the Consolidated
    Fixed Charge Coverage Ratio for any Four-Quarter Period to be less than 1.0
    to 1.0.

    (c)       Consolidated
    EBITDA. Permit Consolidated EBITDA
    for any Four-Quarter Period ending during the periods set forth below to be
    less than the following amounts for the following periods:

     

  




 


  
	
      Four-Quarter Periods
      Ending:
	
      Initial EBITDA

      Requirement:

      
       
	
      Subsequent EBITDA

      Requirement:

      
	
      

    	
      

    	
      

    
	
      From the Closing Date

      Through April 29, 2002

      

      	
      $16,000,000
	
      $13,000,000

	
      From April 30, 2002

      Through April 29, 2003

      

      	
      $19,000,000
	
      $13,000,000

	
      From April 30, 2003

      through Termination

    	
      $24,000,000
	
      $15,000,000



      
    

 


  
For purposes of this Section
8.1(c), (i) "Initial EBITDA Requirement" means the
applicable minimum Consolidated EBITDA requirement for period from the Closing
Date until the Transition Date, and (ii) "Subsequent EBITDA
Requirement" means the applicable minimum Consolidated EBITDA
requirement for the period from the Transition Date until the Facility
Termination Date.





8.2.       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.

8.3.       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 6.7;

    (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

  



     

    45



     


  
    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 8.4(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 8.4(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;

    (g)       Liens arising in
    connection with the Navistar Consignment Agreement and the Navistar
    Intercreditor Agreement;

    (h)       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;

    (i)       Liens arising in
    connection with inventory repurchase obligations permitted under Section
    8.4 (h); provided such liens are limited to the property subject to such
    financing arrangements and the proceeds thereof;

    (j)       Liens arising in
    connection with floor plan financings permitted under Section 8.4 (i);
    provided such liens are limited to the property subject to such financing
    arrangements and the proceeds thereof; and

    (k)       Liens arising in favor
    of any of the Senior Agents (for the benefit of itself and the Senior
    Lenders and the Senior L/C Issuer) in connection with the Senior Facility.

  



8.4.       Indebtedness. Incur,
create, assume or permit to exist any Indebtedness, howsoever evidenced, except
the following (collectively the "Permitted Indebtedness"):


  
    (a)       Indebtedness (other than
    Indebtedness under the Senior Facility) existing as of the Closing Date as
    set forth in Schedule 6.6; provided, 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;

  



     

    46



     

     


  
    (d)       purchase money
    Indebtedness described in Section 8.3 and obligations under Capital
    Leases in an aggregate principal amount outstanding at any time not to
    exceed $5,000,000;

    (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 $1,000,000 outstanding at
    any time;

    (f)       the Guaranty permitted
    hereunder of Guarantors;

    (g)       guaranty obligations, in
    an amount not to exceed $3,500,000 in the aggregate at any one time, of
    Miller incurred in the course of business directly or indirectly
    guaranteeing Indebtedness of any purchaser of an asset disposed of in an
    Asset Disposition permitted under Section 8.5(d);

    (h)       inventory repurchase
    obligations incurred with respect to floor plan financing for Independent
    Distributors; provided that the amount of such obligations shall not
    exceed $30,000,000 in the aggregate at any time;

    (i)       partial recourse
    obligations of Miller incurred with respect to floor plan financing for
    Independent Distributors; provided that the amount of such exposure
    shall not exceed $1,000,000 in the aggregate at any time;

    (j)       Indebtedness in favor of
    the Senior Lenders, the Senior L/C Issuer and the Senior Agents under the
    Senior Facility in an aggregate outstanding principal amount of up to
    $130,000,000.00 at any one time (plus any accrued interest, fees and
    expenses and other charges owing with respect thereto);

    (k)       unsecured intercompany
    Indebtedness from any Miller Borrower to another Miller Borrower, and
    intercompany Indebtedness from any RoadOne Borrower to another RoadOne
    Borrower;

    (l)       unsecured intercompany
    Indebtedness from the RoadOne Borrowers to the Miller Borrowers incurred on
    or after the Closing Date in an aggregate amount outstanding not to exceed
    $1,000,000 at any time;

    (m)       unsecured intercompany
    Indebtedness from the Borrowers or any Subsidiaries to any Foreign
    Subsidiaries in an aggregate amount outstanding not to exceed $100,000 at
    any time; and

    (n)       unsecured intercompany
    Indebtedness incurred on or after the Closing Date for loans and advances
    made by Miller or any Miller Borrower to any RoadOne Borrower, in an in an
    aggregate amount outstanding not to exceed $1,000,000 at any time.

  



8.5.       Transfer of Assets.
Make Asset Dispositions of RoadOne Borrower Assets having a Senior Collateral
Value, in the aggregate, greater than or equal to $11,242,606, unless (i) an
event of default has occurred and is continuing under the Senior Facility, or
(ii) the Lenders have received mandatory prepayments under Section 2.7(iii)
from the Asset Disposition of RoadOne Borrower Assets in an amount of not less
than $3,500,000 in the aggregate following the Closing Date after giving effect
to such Asset Disposition.

8.6.       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)       Eligible Securities;

    (b)       investments, including
    joint ventures, existing as of the date hereof and as set forth in Schedule
    6.4;

  



     

    47



     

     


  
    (c)       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;

    (d)       investments in Miller
    Towing or in Guarantors;

    (e)       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 $200,000; and

    (f)       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.

  



8.7.       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, and (ii) any Foreign Subsidiary may merge into or transfer all or
substantially all of its assets to or consolidate with Miller or any other
Subsidiary.

8.8.       Restricted Payments.
Make any Restricted Payment or apply or set apart any of their assets therefor
or agree to do any of the foregoing.

8.9.       Transactions with
Affiliates. Other than transactions permitted under Sections 8.5,
8.6, 8.7 and 8.8, 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
the Loan available to any or all of the Guarantors, (b) that the Borrowers may
make the benefits of the Loan 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.

8.10.       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 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

  



     

    48



     

     


  
    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.

  



8.11.       Accounting Changes.
Change its Fiscal or make any change in its accounting treatment and reporting
practices except as required by GAAP; provided Miller may elect to change
its Fiscal Year to a calendar fiscal year or a fiscal year ending on January 31
of each calendar year so long as the Borrowers provide to the Agent at least
thirty (30) days prior written notice of such change, and provided that prior to
the effectiveness of any such change, the Borrowers, the Agent and the Lenders
agree in good faith to amend the financial covenants contained in Section 8.1
so as to equitably reflect any such change in Fiscal Year.

8.12.       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 8.7.

8.13.       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 the existence of additional Off Balance Sheet Liabilities
permitted under Section 8.4(h).

8.14.       Change in Control.
Cause, suffer or permit to exist or occur any Change of Control.

8.15.       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 8.4 and (ii) the endorsement of instruments for
deposit or collection in the ordinary course of business.

8.16.       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 or the Senior Agents, the Senior Lenders and
the Senior L/C Issuer pursuant to the Senior Credit Agreement and the
Intercreditor Agreement 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, Capital Leases or operating leases permitted hereunder.

8.17.       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
intercompany Indebtedness permitted under Section 8.4(k) and Indebtedness
under

 

    49



     

 the Senior Facility (in accordance with the terms of the Senior Credit
Agreement (as in effect on the date hereof) and the Intercreditor Agreement).

(b)       Amend, modify or change in
any manner any term or condition of any Indebtedness described in Section
8.4(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.

8.18.       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.

8.19       Modification of Senior
Facility. Enter into any agreement, amendment, increase, extension, renewal,
waiver, or other modification (a "Change") with respect to the Senior
Facility (including but not limited to the Senior Credit Agreement and the other
documents related thereto) without the prior written consent of the Agent and
the Lenders if such Change has the effect of:


  
    (i)       increasing the amount of
    Excess Availability required to be maintained by Miller and its Subsidiaries
    (as applicable) under the terms of the Senior Credit Agreement, or required
    to be in effect under the definition of "Permitted Payments" in
    the Intercreditor Agreement, to an amount in excess of the Post-Disposition
    Availability Requirement; or

    (ii)       increasing the Fixed
    Charge Coverage Ratio (as defined in the Senior Credit Agreement) required
    to be maintained by Miller and its Subsidiaries (as applicable) under the
    terms of the Senior Credit Agreement, or required to be in effect under the
    definition of "Permitted Payments" in the Intercreditor Agreement,
    to a ratio greater than 1.15 to 1.0; or

    (iii)       otherwise specifically
    prohibiting the payment or prepayment of any amount of principal to the
    Lenders hereunder, which payment would otherwise be permitted under the
    terms hereof (as in effect on the Closing Date) or under the Intercreditor
    Agreement.

    

  

     

    50

    

     

    ARTICLE IX


Events of Default and
Acceleration


9.1.       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 or other
    Obligation, when and as the same shall be due and payable whether pursuant
    to any provision of Article II, 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 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 2.7,
    2.9, 7.7, 7.11, 7.12, 7.19, 7.22, 7.24,
    or Article VIII; 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

    (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 Loan and other Obligations or any Indebtedness
    under the Senior Facility) 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

  



     

    51

    

     

     


  
    (f)       if an
    event of default shall have occurred and be continuing under the Senior
    Facility and the Senior Lenders shall have accelerated the maturity of all
    Obligations under the Senior Facility as a consequence thereof; or

    (g)       if an event of default
    shall have occurred and be continuing under the Senior Facility and the
    Senior Lenders shall have delivered to the Agent or any Lender either (i) a
    Payment Blockage Notice (as defined in the Intercreditor Agreement), or (ii)
    written notice invoking a standstill pursuant to Section 6.2 of the
    Intercreditor Agreement; or

    (h)       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

    (i)       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

    (j)       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 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

    (k)       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

    (l)       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 8.7,
    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

    (m)       any actual or asserted
    invalidity (other than by the Agent or Lenders) of the Loan Documents shall
    occur; or

    (n)       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

  



     

    52

    

     

     


  
    (o)      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)       the Agent, with the
        consent of the Required Lenders, may, and at the direction of the
        Required Lenders shall 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 notwithstanding; provided, however,
        that notwithstanding the above, if there shall occur an Event of Default
        under clause (g) or (h) above, then 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 Agent and each
        of the Lenders shall have all of the rights and remedies available under
        the Loan Documents or under any applicable law.

      

    

  



9.2.       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.

9.3.       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.

9.4.       No Waiver. No course
of dealing between the Borrowers and any Lender or the Agent or any failure or
delay on the part of any Lender 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.

9.5.       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 IX 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 pursuant to Sections 2.9 and 11.5;

    (b)       amounts due to the Agent
    pursuant to Sections 2.10 and 10.8;

    (c)       payments of interest on
    the Loan to be applied for the ratable benefit of the Lenders;

    (d)       payments of principal of
    the Loan, to be applied for the ratable benefit of the Lenders;

    (e)       amounts due to the
    Lenders pursuant to Sections 7.15 and 11.9;

    (f)       payments of all other
    Obligations due under any of the Loan Documents, if any, to be applied for
    the ratable benefit of the Lenders;

  



     

    53

    

     

     


  
    (g)      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

    (h)      any surplus remaining
    after application as provided for herein, to the Borrowers or otherwise as
    may be required by applicable law.

  



9.6.       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.

 

    54

    

     

ARTICLE X


The Agent


10.1.       Appointment, Powers,
and Immunities. Each Lender 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 10.5 and the first sentence of Section
10.6 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; (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 Bank of America as the Agent for the Lenders
under this Agreement, and each of the Lenders hereby irrevocably authorizes Bank
of America 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.

10.2.       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 11.1 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 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.

10.3.       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 10.2 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.

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10.4.       Rights as Lender.
With respect to the Loan made by it, Bank of America (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. Bank of America (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 Bank of America (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.

10.5.       Indemnification.
The Lenders agree to indemnify the Agent (to the extent not reimbursed under Section
11.9 hereof, but without limiting the obligations of the Borrowers under
such Section) ratably in accordance with their respective 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
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 11.5, 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 Loan and all
other amounts payable under this Agreement.

10.6.       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.

10.7.       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
X 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.

10.8.        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 an amount not in excess of
$25,000 in the aggregate in any Fiscal Year (unless written consent of the
Senior Lenders is received with respect thereto).

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ARTICLE XI


Miscellaneous

11.1.       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 Loan and its Note); 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 $1,000,000 or an integral multiple of
    $1,000,000 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 Term Loan Facility and the Notes; 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 Notes 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 under the Loan Documents
(including the Warrant Agreement), 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 4.6.

(b)       The Agent shall maintain at
its address referred to in Section 11.2 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 principal amount of the Loan
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 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
Loan); 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 Loan and its Note and to approve
any amendment, modification or waiver of any provision of this Agreement (other
than amendments,

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modifications or waivers decreasing the amount of principal of
or the rate at which interest is payable on such Loan or Note, extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loan or Note) 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 Loan 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.

11.2.       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 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:

          
            Bank of America, N.A.

            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:

            Bank of America, N.A.

            Independence Center,
            13th Floor

            NC1-001-13-26

            Charlotte, North
            Carolina 28255

            Attention: John P.
            McDuffie

            Telephone: (704)
            386-7655

            Telefacsimile: (704)
            386-5856

          

        

      

    

  



     

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            (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.

          
             

          

        

      

    

  



11.3.       Right of Set-off;
Adjustments. (a) Upon the occurrence and during the continuance of any Event
of Default and subject to the terms of the Intercreditor Agreement, 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 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
Loan 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 Loan 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 Loan 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 11.3 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.

11.4.       Survival. All
covenants, agreements, representations and warranties made herein shall survive
the making by the Lenders of the Loan 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.

11.5.       Expenses. The
Borrowers agree to pay on demand all reasonable costs and expenses of the Agent
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
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.

 

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11.6.       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 X 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 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 Commitment, (iv) change the percentage 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) except as otherwise provided for
herein, release any Guarantor or Pledged Stock or any Liens upon or other rights
in all or any material portion of any other Collateral.

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.

11.6A.       Release of Liens.
The Agent is hereby authorized and obligated, at the request and expense of the
Borrowers, (a) to release the Liens arising under the Security Instruments as
may be necessary to effectuate any Asset Disposition (or other sale or
disposition of assets) or Debt Offering otherwise permitted hereunder, and (b)
to release any Guaranty of any Subsidiary all or substantially all of the
capital stock of which or other equity interests in which are being sold in an
Asset Disposition otherwise permitted hereunder.

11.7.       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.

11.8.       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 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.
Notwithstanding anything herein or in any other Loan Documents to the contrary,
it is expressly understood and agreed that any and all provisions in any of the
Loan Documents (other than the Warrant Agreement and the Warrants) to the effect
that such Loan Document (and any Liens of any Agent or Lenders thereunder) shall
not terminate unless and until all Obligations are satisfied or no longer
outstanding shall be construed to refer to all Obligations other than those
arising from or under the Warrant Agreement or the Warrants and it shall not be
a condition to such termination that any or all of the Obligations arising from
or under the Warrant Agreement or the Warrants be satisfied or no longer
outstanding.

 

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11.9.       Indemnification.
(a) The Borrowers agree to indemnify and hold harmless the Agent 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 Loan,
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 11.9(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 11.9 shall survive
the payment in full of the Loan and all other amounts payable under this
Agreement and the Notes.

11.10.       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.

11.11.       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, commitments
and other communications between or among the parties, both oral and written,
with respect thereto.

11.12.       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.

11.13.       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 Loan 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 Loan made hereunder is 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 Loan 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.

 

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11.14.       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 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
    OR THE COUNTY OF FULTON OR DE KALB, STATE OF GEORGIA, 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 11.2, 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.

  

11.15.       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. 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.

11.16.       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

     

    62

    

     

 

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; provided that (a) the foregoing subordination shall not apply
to the Intercompany Accounts until the Senior Credit Agreement is terminated and
all obligations thereunder are paid in full, and (b) the foregoing subordination
and the Borrowers’ obligations with respect thereto shall be subject to the
terms of the Intercreditor Agreement. 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 11.16. 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.

11.17.       Joint and Several
Obligations. The Loan to Borrowers under this Agreement and the Obligations
shall constitute one joint and several general obligation of each of the
Borrowers and Guarantors. Each Borrower and Guarantor shall be jointly and
severally liable to the Lenders for all Obligations hereunder, it being
stipulated and agreed that the Loan inures to the benefit of each of the
Borrowers and Guarantors, and that the Lenders are relying on the joint and
several liability of the Borrowers and Guarantors in extending credit hereunder.
Each Borrower and Guarantor agrees that the joint and several liability of the
Borrowers and Guarantors 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 with respect to
any of the Obligations, nor by any other agreements or arrangements whatever
with the Borrowers and Guarantors, each Borrower and Guarantor 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 and Guarantor hereunder is direct and unconditional
as to all of the Obligations hereunder, and may be enforced without requiring
the Lenders first to resort to any other right, remedy or security; neither
Borrower nor any Guarantor 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 or
any Guarantor 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 the other Borrower or any Guarantor 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 and Guarantors to the Lenders.

[Signatures on following pages]

 

 

    63

    

     

 

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/ Frank Madonia
      

      Name:
                        Frank Madonia

                              Title:
                        Attorney-in-Fact

       

    
	
                        

    	
                        

    
	
                        

    	
                        

    
	
                        

    	
                        MILLER
                        INDUSTRIES TOWING EQUIPMENT
                        INC.

    
	
                        

    	
                        

    
	
                        

    	
                        

    
	
                        

    	
                        By: 
                        /s/ Frank Madonia
      

      Name:
                        Frank Madonia

                                Title:
                        Attorney-in-Fact
                           
		


                        
                         

                         

                         

                         

                         

                         

                        

                         

  


	


                        
                        ACKNOWLEDGED AND CONSENTED TO:

    	
		GUARANTORS:

    
		


                      ACKERMAN
                      WRECKER SERVICE, INC.

                      A-EXCELLENCE
                      TOWING CO.

                      ALL
                      AMERICAN TOWING SERVICES, INC.

                      ALLIED
                      GARDENS TOWING, INC.

                      ALLIED
                      TOWING AND RECOVERY, INC.

                      ALTAMONTE
                      TOWING, INC.

                      ANDERSON
                      TOWING SERVICE, INC.

                      APACO,
                      INC.

                      ARROW
                      WRECKER SERVICE, INC.

                      A TO Z
                      ENTERPRISES, INC.

                      B&B
                      ASSOCIATED INDUSTRIES, INC.

                      B-G
                      TOWING, INC.

                      BEAR
                      TRANSPORTATION, INC.

                      BEATY
                      TOWING & RECOVERY, INC.

                      BERT’S
                      TOWING RECOVERY

                      


         CORPORATION

    BOB BOLIN
                      SERVICES, INC.

    BOB’S AUTO
                      SERVICE, INC.

    BOB
                      VINCENT AND SONS WRECKER


         SERVICE,
                      INC.

    BOULEVARD
                      & TRUMBULL TOWING, INC.


         BREWER’S,
                      INC.

    BRYRICH
                      CORPORATION

    C&L
                      TOWING SERVICES, INC.

    CAL WEST
                      TOWING, INC.

    CARDINAL
                      CENTRE ENTERPRISES, INC.

    CEDAR
                      BLUFF 24 HOUR TOWING, INC.

    CENTRAL
                      VALLEY TOWING, INC.

    CENTURY
                      HOLDINGS, INC.

    CHAD’S,
                      INC.

    CHAMPION
                      CARRIER CORPORATION

    CHEVRON,
                      INC.

    CHICAGO
                      METRO SERVICES, INC.

    CLARENCE
                      CORNISH AUTOMOTIVE


         SERVICE,
                      INC.

    CLEVELAND
                      VEHICLE DETENTION

    CENTER,
                      INC.

  

  
                      COFFEY’S
                      TOWING, INC.

                      COLEMAN’S
                      TOWING & RECOVERY, INC.

                      COMPETITION WHEELIFT, INC.

                      D.A. HANELINE, INC.

                      DICK’S
                      TOWING & ROAD SERVICE, INC.

                      DOLLAR
                      ENTERPRISES, INC.

                      DON’S
                      TOWING, INC.

                      DUGGER’S
                      SERVICES, INC.

                      DUN-RITE
                      TOWING, INC.

                      DURU, INC.

                      DVREX,
                      INC.

                      E.B.T.,
                      INC.

                      EXPORT
                      ENTERPRISES, INC.

                      GARY’S
                      TOWING & SALVAGE POOL, INC.

                      GOLDEN
                      WEST TOWING EQUIPMENT INC.


                      
  


 



                     




    		
                      GOOD
                      MECHANIC AUTO CO. OF

                      RICHFIELD,
                      INC.

                      GREAT
                      AMERICA TOWING, 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.

                      KAUFF’S,
                      INC.

                      KAUFF’S OF
                      FT. PIERCE, INC.

                      KAUFF’S OF
                      MIAMI, INC.

                      KAUFFS OF
                      PALM BEACH, INC.

                      KEN’S
                      TOWING, INC.

                      KING
                      AUTOMOTIVE & INDUSTRIAL

                      EQUIPMENT,
                      INC.

                      LAZER TOW
                      SERVICES, INC.

                      LEVESQUE’S
                      AUTO SERVICE, INC.

                      LINCOLN
                      TOWING ENTERPRISES, INC.

                      LWKR, INC.

                      M&M
                      TOWING AND RECOVERY, INC.

                      MAEJO,
                      INC.

                      MEL’S
                      ACQUISITION CORP.

                      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.

      MOSTELLER’S
                      GARAGE, INC.

      MURPHY’S
                      TOWING, INC.

      OFFICIAL
                      TOWING, INC.

      O’HARE
                      TRUCK SERVICE, INC.

      P. A. T.,
                      INC.

      PIPES
                      ENTERPRISES, INC.

      PRO-TOW,
                      INC.

      PULLEN’S
                      TRUCK CENTER, INC.

      PURPOSE,
                      INC.

      RAR
                      ENTERPRISES, INC.

      RANDY’S
                      HIGH COUNTRY TOWING, INC.

      RAY
                      HARRIS, INC.

      RMA
                      ACQUISITION CORP.

      RRIC
                      ACQUISITION CORP.

      RAY’S
                      TOWING, INC.

      RBEX INC.

      RECOVERY
                      SERVICES, INC.

      RTIEX,
                      INC.

      R.M.W.S.,
                      INC.

      ROAD ONE,
                      INC.

      ROADONE
                      EMPLOYEE SERVICES, INC.

      

      
    


                     

                     



                     




    		
                      ROAD ONE
                      INSURANCE SERVICES, INC.

                      ROAD ONE
                      SERVICE, INC.

                      ROADONE
                      SPECIALIZED

                      TRANSPORTATION,
                      INC.

                      ROADONE
                      TRANSPORTATION AND

                      LOGISTICS,
                      INC.

                      SANDY’S
                      AUTO & TRUCK SERVICE, INC.

                      SAKSTRUP
                      TOWING, INC.

                      SONOMA
                      CIRCUITS, INC.

                      SOUTHERN
                      WRECKER CENTER, INC.

                      SOUTHERN
                      WRECKER SALES, INC.

                      SOUTHWEST
                      TRANSPORT, 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.

                      TOW PRO
                      CUSTOM TOWING & HAULING, INC.

                      TREASURE
                      COAST TOWING, INC.

                      TREASURE
                      COAST TOWING OF MARTIN COUNTY, INC.

                      TRUCK
                      SALES & SALVAGE CO., INC.

                      WALKER
                      TOWING, INC.

                      WES’S
                      SERVICE INCORPORATED

                      WESTERN
                      TOWING; MCCLURE/EARLEY

                      ENTERPRISES,
                      INC.

                      WHITEY’S
                      TOWING, INC.

                      WILTSE
                      TOWING, INC.

                      ZEBRA
                      TOWING, INC.

                      ZEHNER
                      TOWING & RECOVERY, INC.



 



                   

 




    		


                        By: 
                        /s/ Frank Madonia

      

      Name:
                        Frank Madonia

                              Title:
                        Attorney-in-Fact


      


                   

                   

                   



                   




    		


                      BANK OF
                      AMERICA, N.A., as Agent for the Lenders

                       

                      By:                                                                                                                

                      Name:                                                                                                           

                      Title:                                                                                                             

                      


    


                   

                      

                      


                       




    		


                      BANK OF
                      AMERICA, N.A.

                       

                      By:         /s/
                      John P. McDuffie                                                         

                      Name:    John
                      P. McDuffie

                      Title:      Vice President


    


                       




    		



      Lending
                      Office:
      
        
                          Bank
                          of America, N.A.

                          Independence
                          Center, 15th Floor

                          NC1-001-15-04

                          Charlotte,
                          North Carolina 28255

                          Attention:
                          Agency Services

                          Telephone:
                          704-387-2470

                          Telefacsimile:
                          704-409-0009

        

      


       



                       

                       



                           

                           




    		
                      WACHOVIA
                      BANK, N.A.

                       

                       

                      By:          /s/
                      William W. Teegarden                                                

                      Name:    William W. Teegarden

                      Title:       Senior Vice President

                       

                      Lending
                      Office:

      
                          Wachovia
                          Bank, N.A.

                          U.S. Corporate Finance

                          191 Peachtree Street North East,
28th Floor

                          Atlanta,
                            Georgia 30303

                          Attention:
                            William W. Teegarden

                          Telephone: 404-332-1345

                          Telefacsimile: 404-332-4136

      





                           



                             




    		
                        AMSOUTH
                        BANK

                         

                        By:        /s/
                        M. Rex Hamilton                                                         

                        Name:   M.
                        Rex Hamilton

                        Title:     Commercial Banking Officer

                        

                        Lending
                        Office:

      
                            AmSouth
                            Bank

                            1900 5th Ave. North,
AST 6th Floor

                            Birmingham,
                            Alabama 35203

                            Attention:
                            Rex Hamilton

                            Telephone:
                            205-320-7116

                            Telefacsimile: 205-326-4790

      


    


                             

                         



                         




    		
                        SUNTRUST
                        BANK

                         

                        By:        /s/
                        Samuel Ballesteros                                                       
                        

                        Name:   Samuel Ballesteros

                        Title:     Director

                        Lending
                        Office:

      
                            SunTrust
                            Bank

                            201
                            Fourth Avenue North, 12th Floor

                            Nashville,
                            Tennessee 37219

                            Attention:
                            Samuel Ballesteros

                            Telephone:
                            615-748-4737

                            Telefacsimile:
                            615-748-5700

                            

      


    


                         

                             

                             

                             

                             

                             



                             


  
    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                             

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

  




EXHIBIT A


Applicable Commitment Percentages

Applicable


  
    
      
        
          
            
              
                Commitment

              

            

          

        

      

    

  



	


Lender

      

    	
Commitment

    	
Applicable

 Commitment

 Percentage


      

    
	
Bank of America, N.A.

    	

$7,600,000.00

    	
 54.2857142857%

    
	
Wachovia Bank, N.A.

    	

$2,400,000.00

    	
 17.1428571429%

    
	
AmSouth Bank, f/k/a

      

      First American National Bank

    	

$2,000,000.00

    	
 14.2857142857%

    
	
SunTrust Bank

    	
 $2,000,000.00

    	

14.2857142857%

    


 

 

 

A-1



 

 

 


EXHIBIT B


Form of Assignment and Acceptance

DATED _________, ___

Reference is made to the Amended
an Restated Credit Agreement dated as of July 23, 2001 (as from time to time
amended, restated, supplemented, modified, or replaced, 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 Bank of
America, N.A., 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 (including
the Warrant Agreement) as of the date hereof equal to the percentage interest in
the Commitment specified on Schedule 1. After giving effect to such sale
and assignment, the Assignee’s Term Loan Commitment and the amount of the Loan
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
held by the Assignor and requests that the Agent exchange such Note for a new
Note payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and to the Assignor in an amount equal
to the 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 7.1 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 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 4.6.

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 under the Loan
Documents (including the Warrant Agreement), 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.

 

B-1



 

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



 

 

IN WITNESS WHEREOF, the Assignor
and the Assignee have caused this Assignment and Acceptance and 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:______________________,
                        20 _

    
		
                        

    
		
                        [NAME OF
                        ASSIGNEE], as Assignee

    
		
                        

    
		
                        By:___________________________________

    
		
                        Title:

    
		
                        

    
		
                        Lending
                        Office:

    


                         

                         

Accepted [and Approved] *

this ___ day of ___________, 20
_

 

BANK OF AMERICA, N.A., as Agent

 

By:_________________________________________

Title:

 

[Approved this ____ day

of ____________, 20__

 

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



 

 

 

 

SCHEDULE 1

to

ASSIGNMENT AND ACCEPTANCE

 

 

	
Percentage interest of
Commitment assigned

    	
 ________%

    
	
Assignee’s Commitment:

    	
$_______

    
	
Aggregate outstanding principal
amount of

Loan assigned:

    	
$_______

    
	
Principal amount of Note payable

to Assignee:

    	
$_______

    
	
Principal amount of Note payable

to Assignor:

    	
$_______

    
	
Effective Date (if other than
date

of acceptance by Agent):

    	
 _______, 20__

    


 

 

 

B-4



 

 

 


EXHIBIT C


Notice of Appointment (or
Revocation) of Authorized Representative

Reference is hereby made to the
Amended and Restated Credit Agreement dated as of July 23, 2001 (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 Bank of
America, N.A., 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
__________________, 20__.

 

 

                        
                        		
                        MILLER
                        INDUSTRIES, INC.

                            By:________________________________

                            Name:_____________________________

                            Title:______________________________

                          


                         

                         

                        C-1



                         

                        

  EXHIBIT D


Form of Note

Promissory Note

(Term Loan)

 

	
$__________________________ 

    	

Charlotte, North Carolina          

    
	


    	
July 23, 2001          

    


 


  
    
      
        
        THIS NOTE AND THE
        INDEBTEDNESS EVIDENCED HEREBY HAVE BEEN SUBORDINATED TO CERTAIN
        OBLIGATIONS OF THE MAKER PURSUANT TO AN INTERCREDITOR AND SUBORDINATION
        AGREEMENT BETWEEN BANK OF AMERICA, N.A., AS JUNIOR AGENT, AND BANK OF
        AMERICA, N.A. AND THE CIT GROUP/BUSINESS CREDIT, INC., AS SENIOR AGENTS,
        AS AMENDED FROM TIME TO TIME.

        
         

      

    

  



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 BANK OF AMERICA, N.A., 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 Amended and
Restated Credit Agreement dated as of July 23, 2001 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 ($___________) on the Term Loan
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 the Term Loan 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 hereof and accrued but unpaid interest thereon
evidenced by 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 Borrower.

In the event this Note is not
paid when due at any stated or accelerated maturity, the Borrower agrees to pay,
in addition to the principal and interest due hereunder, all costs of
collection, including reasonable attorneys’ fees, and interest 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 evidencing the Term Loan 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 Term Loan evidenced hereby was made and is to be repaid. The obligations
evidenced hereby are secured by the Security Instruments. This Note is subject
to certain restrictions on transfer or assignment as provided in the Agreement.

 

D-1



 

The indebtedness evidenced by
this Note constitutes a continuation and modification of a portion of that
indebtedness previously outstanding under the Existing Credit Agreement. This
Note is given as a substitution of, and not as a payment of, the existing
Amended and Restated Promissory Note (Revolving Loan) and the existing
Promissory Note (Term Loan), each dated July 26, 2000, of the Borrowers payable
to the Lender (the "Existing Notes"). All of the indebtedness,
liabilities and obligations owing by the Borrower under the Existing Notes shall
continue and be evidenced in part by this Note delivered in partial substitution
for, and not payment or novation of, the Existing Note.

This Note shall be governed by
and construed in accordance with the laws of the State of Georgia.

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 all defenses based on suretyship or impairment of collateral and 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 unsatisfied 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, diligence or any
other formality are hereby waived by all parties bound hereon.

 


[Signature page follows.]


 

 

D-2



 

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:	
	_________________________________

      ___________________________Secretary 	


By:___________________________________________

 Name:_________________________________________

Title:__________________________________________

      

    
		
	(SEAL)	


 

 

		MILLER
                        INDUSTRIES TOWING EQUIPMENT INC.
       

	ATTEST:	
	_________________________________

      ___________________________Secretary 	


By:___________________________________________

 Name:_________________________________________

Title:__________________________________________

      

    
		
	(SEAL)	


 




 

D-3



 

 


EXHIBIT E


Form of Opinion of Borrowers’ and
Guarantors’ Counsel

 


	
       

       

      
	
      Attorneys
      at Law

      
      
      Suite 2800

      1100 Peachtree Street

      Atlanta, Georgia 30309-4530

      Telephone: 404.815.6500

      Facsimile: 404.815.6555

      Web site:
      www.kilpatrickstockton.com

    
	
      July
      23, 2001
	
       

      E-mail: HJordan@KilpatrickStockton.com

      Direct Dial: 404.815.6362

    



 

 

	
    TO:

    	
    Each of the Agent and
    the Lenders party to the

    Credit Agreement referenced below

    

    
		Re:	 Amended and Restated
        Credit Agreement, dated as of July 23, 2001, among Miller Industries,
        Inc., Miller Industries Towing Equipment Inc., each of the Lenders
        listed on the signature pages thereof, and Bank of America, N.A., as
        Agent (the "Credit Agreement")


     

Ladies and Gentlemen:

 

This opinion is furnished
pursuant to Section 5.1 of the Credit Agreement. Capitalized terms used
herein which are defined in the Credit Agreement shall have the respective
meanings set forth or referred to in the Credit Agreement unless otherwise
defined herein.

We have acted as counsel for
Miller Industries, Inc., a Tennessee corporation ("Miller"),
Miller Industries Towing Equipment Inc., a Delaware corporation ("Towing";
Miller and Towing are herein collectively called the "Borrowers"),
and the Guarantors listed on Schedule 1 attached hereto (collectively,
together with Borrowers, the "Credit Parties"), in connection
with the preparation, negotiation, execution and delivery of the following
documents (collectively, the "Documents"):

 

		(i)	 The Credit
          Agreement;
		(ii)	 The Notes dated
          July 23, 2001 and issued by Borrower;
		(iii	 The Guaranties,
          dated as of January 30, 1998, May 15, 1998, August 14, 1998, October
          27, 1998, October 28, 1998, November 12, 1998, February 12, 1999, May
          13, 1999, July 20, 1999, November 4, 1999, February 14, 2000 and May
          19, 2000 executed by the Guarantors;
		(iv)	 The Pledge
          Agreement, dated as of January 30, 1998, executed by Miller, as
          supplemented by the Stock Pledge Agreement Supplements, dated as of
          May 15, 1998, August 14, 1998, October 27, 1998, October 28, 1998,
          November 12, 1998, February 12, 1999, May 13, 1999, July 20, 1999,
          November 4, 1999 and February 14, 2000 executed by Miller;
		(v)	 The Pledge
          Agreements, dated as of January 30, 1998, May 15, 1998, October 27,
          1998, November 12, 1998, February 12, 1999 and May 13, 1999 executed
          by Road One, Inc., Century Holdings, Inc., O’Hare Truck Service,
          Inc., Southern Wrecker Sales, Inc., Vulcan International (Delaware),
          Inc., Champion Carrier Corporation, and Miller Industries
          International, Inc., B-G Towing, Inc., Great America Towing, Inc.,
          Suburban Wrecker Service, Inc. and Kauff’s, Inc. (collectively,
          together with Miller, the "Pledgors"), as
          supplemented by the Stock Pledge Agreement Supplements, dated as of
          October 27, 1998, February 12, 1999 and May 19, 2000, executed by Road
          One, Inc.;


 

          E-1



           

		(vi)	 The Security
          Agreements, dated as of July 27, 1999, November 4, 1999, February 14,
          2000 and May 19, 2000 executed by the Credit Parties;
		(vii)	 The Intellectual
          Property Security Agreement, dated as of July 27, 1999, executed by
          the Credit Parties;
		(viii)	 The Assignment
          of Lessee’s Interest in Leases, dated as of July 27, 1999, executed
          by Road One, Inc.;
		(ix)	 The Custodial
          Administration Agreement, dated as of July 23, 2001, among the Credit
          Parties, the Agent, the Senior Agents and VINtek, Inc.;
		(x)	 The Power of
          Attorney, dated as of July 23, 2001, executed by the Credit Parties;
		(xi)	 Collateral
          Assignment of Deed of Trust, dated as of July 23, 2001, executed by
          Miller;
		(xii)	 Collateral
          Assignment of Security Documents, dated as of July 23, 2001, executed
          by Towing;
		(xiii)	 Warrant
          Agreement, dated as of July 23, 2001, executed by Miller; and
		(xiv)	 The Uniform
          Commercial Code financing statements naming each Credit Party as
          debtor and the Agent as secured party (collectively, "Financing
          Statements") which were filed in the Office of the Secretary
          of State of Tennessee (the "Filing Office") prior to
          July 1, 2001.


           

In connection with this opinion,
we have examined and relied on executed originals of the Documents and on the
factual matters contained in the following certificates or documents relating to
the Credit Parties:

 

		(a)	 Certificate of the
        Secretary or Assistant Secretary, as appropriate, of each of the Credit
        Parties, dated as of the date hereof, respecting (i) the Articles or
        Certificate of Incorporation and Bylaws of such Credit Party, (ii) the
        authorizing resolutions adopted by the Board of Directors (or duly
        constituted committee of the Board of Directors) of such Credit Party,
        and (iii) the incumbency of officers of such Credit Party;
		(b)	 Supporting
        Certificate of Miller dated as of the date hereof, a copy of which is
        attached hereto as Exhibit A; and
		(c)	 The certificates of
        good standing/existence of the Credit Parties which are listed on Schedule
        2 attached hereto.


 

Whenever any opinion or
confirmation of fact set forth in this opinion letter is qualified by the words
"to our knowledge", "known to us" or other words of similar
meaning, such words mean the current awareness by lawyers in the Primary Lawyer
Group (defined below) of factual matters such lawyers recognize as being
relevant to the opinion or confirmation so qualified. "Primary Lawyer
Group" means the lawyer who signs this opinion letter and, solely as to
information relevant to an opinion or confirmation issue, any other lawyer in
this firm who is primarily responsible for providing the response concerning the
particular issue. Except as may be expressly described herein, we have not
undertaken any investigation to determine the existence or absence of facts and
no inference as to our knowledge of the existence or absence of facts should be
drawn from our serving as outside counsel for the Credit Parties.

 

E-2



 

As to various factual matters
that are material to our opinions set forth herein, we have relied on the
representations and warranties of the Credit Parties set forth in the Documents
and certificates executed by officers of the Credit Parties, as well as on the
statements contained in the various certificates described above, with respect
to such factual matters. We also have relied on certificates of or telephone
confirmations from public officials. We have not independently verified, nor do
we assume any responsibility for, the factual accuracy or completeness of any
such representations, warranties, statements or certificates.

Moreover, our review of the
Documents was conducted, and our opinions thereon are rendered, only as of the
dates of execution, delivery and effectiveness of the same as indicated
hereinabove, and we have not undertaken any investigation to determine the
continued existence or absence of any facts upon which such documents or
opinions are predicated.

We have assumed: (i) the
genuineness of all signatures (other than signatures on behalf of Credit
Parties) on, and authenticity of, all documents (other than the Documents)
submitted to us as originals and the conformity to original documents of all
documents submitted to us as copies; and (ii) the due authorization, execution
and delivery of all Documents by all parties thereto (other than the Credit
Parties).

We also have assumed that the
Lenders and the Agent each have all requisite power and authority to enter into
and perform their respective obligations under the Documents, that the Documents
have been duly authorized, executed and delivered by the Lenders and the Agent,
and that the Documents constitute the legal, valid and binding obligations of
the Lenders and the Agent. We also have assumed that the making of the Loans by
the Lenders will not violate any applicable laws regulating the types or amounts
of loans, extensions of credit, or investments that such parties may properly
make (other than the laws described in paragraphs numbered 7, 9 and 10 below).

We also have assumed that the
proceeds of any and all Loans will be used in accordance with the terms of the
Credit Agreement.

We also have assumed, with your
permission and without independent investigation or inquiry, the following:

(1)       Each Credit Party has,
before or concurrently with the execution and delivery of the Security
Agreement, rights in the Collateral of such Credit Party covered by the Security
Agreement, including that portion of such Collateral which constitutes personal
property (other than fixtures) of a type (i) in which a security interest may be
granted and perfected under the provisions of Article 9 of the Uniform
Commercial Code as in effect in the State of Tennessee (the "State")
on this date (the "UCC"), and (ii) as to which federal law has
not preempted the UCC with respect to the validity, enforceability, or
perfection of security interests therein (such portion of such Collateral being
herein collectively called the "UCC Collateral");

(2)       The location of the
principal place of business and chief executive office of each of the Credit
Parties is and will remain located within the State of Tennessee;

(3)       All of the UCC Collateral is
situated or located within the State of Tennessee; and

(4)       Each Financing Statement
gives a correct mailing address for the debtor named therein and a correct
address of the secured party named therein from which information concerning the
security interest to be perfected thereby may be obtained and each Financing
Statement filed on or after July 1, 2001 gives the correct organization number
of the debtor named therein.

We also have made such
investigations of law as we have deemed necessary as the basis for the opinions
expressed herein.

 

E-3



 

 

Based on the foregoing, and
subject to the exceptions and qualifications set forth below, it is our opinion
that:

1.       Each Borrower is a corporation validly existing and in good standing under the
laws of the state of its incorporation as set forth above and is duly qualified
to transact business as a foreign corporation and is in good standing in the
States of Georgia and Oregon in the case of Miller and in the State of Tennessee
in the case of Towing. Each Borrower has full corporate power and authority to
own its assets and conduct the businesses in which it is now engaged as known to
us and has full corporate power and authority to enter into each Document to
which it is a party and to perform its obligations thereunder.

2.       Each of the Documents to which each Borrower is a party has been duly
authorized, executed and delivered by such Borrower and constitutes the legal,
valid and binding obligation, instrument or agreement (as the case may be) of
such Borrower, enforceable against such Borrower in accordance with its
respective terms.

3. 
     Except to the extent expressly noted on Schedule 1 attached hereto, each
Guarantor is a corporation validly existing and in good standing under the laws
of its state of incorporation as set forth on Schedule 1 attached hereto
and is duly qualified to transact business as a foreign corporation in the
jurisdiction or jurisdictions specified with respect to such Guarantor on Schedule
1 attached hereto. Each Guarantor has full corporate power and authority to
own its assets and to conduct the businesses in which it is now engaged as known
to us and has full corporate power and authority to enter into each of the
Documents to which it is a party and to perform its obligations thereunder.

4.       Each of the Documents to which each Guarantor is a party has been duly
authorized, executed and delivered by such Guarantor and constitutes the legal,
valid and binding obligation, instrument or agreement (as the case may be) of
such Guarantor, enforceable against such Guarantor in accordance with its
respective terms.

5.       Neither the execution or delivery by any Credit Party of, nor performance by any
Credit Party of its obligations under, the Documents (a) does or will conflict
with, violate or constitute a breach of (i) the Certificate or Articles of
Incorporation or the Bylaws of any Credit Party, (ii) any laws, rules or
regulations applicable to any Credit Party, (iii) except as set forth on Schedule
4 attached hereto, to our knowledge, any contract or other agreement to
which any Credit Party is a party or by which any of its properties is bound,
(iv) to our knowledge, any judgment, writ, determination, order, decree or
arbitral award to which any Credit Party is a party or by which any Credit Party
or any of its properties is bound, (v) requires the consent of, notice to,
license from or filing with any Governmental Authority which has not been duly
obtained or made on or prior to the date hereof (other than such filings as may
be necessary in order to perfect any of the Liens of the Agent or the Lenders
under the Documents), or (vi) does or will result in the creation or imposition
of any lien, pledge, charge or encumbrance of any nature upon or with respect to
any of the properties of any Credit Party (other than any Liens of the Agent and
the Lenders under the Documents).

6.       Except as disclosed on Schedule 6.10 to the Credit Agreement, to our
knowledge there is on this date no pending or threatened action, suit,
investigation or proceeding (including, without limitation, any action, suit,
investigation or proceeding under any environmental or labor law) before or by
any court or governmental department, commission, board, bureau,
instrumentality, agency or arbitral authority, (i) which calls into question the
validity or enforceability of any of the Documents or the titles to their
respective offices or authority of any of the officers of any Credit Party or
(ii) which, if adversely determined, could reasonably be expected to have a
Material Adverse Effect.

7.       None of the transactions contemplated by the Credit Agreement, including,
without limitation, the use of the proceeds of the Loans, would violate or
result in the violation of Section 7 of the Securities Exchange Act of 1934, as
amended, any regulations of the Securities and Exchange Commission issued
pursuant thereto, or Regulation T, U or X of the Board of Governors of the
Federal Reserve System.

 

E-4



 

8.       The Financing Statements were in the appropriate form for filing in the Filing
Office. The Security Agreement is effective to create valid security interests
in favor of the Agent, for the benefit of the Lenders, in the UCC Collateral.
The security interests created by the Security Agreements, to the extent they
may be perfected by the filing in the State of Tennessee of UCC financing
statements, were perfected upon the filing of the Financing Statements in the
Filing Office, which Filing Office was the only office in the State of Tennessee
in which the Financing Statements were required to be filed at the time of such
filing in order to perfect the Agent’s security interests in the UCC
Collateral under the Security Agreement.

9.       The Pledge Agreements create valid security interests in favor of the Agent, for
the benefit of the Lenders, in the Pledged Stock covered by the Pledge
Agreements. All of the shares of the Pledged Stock of the Domestic Subsidiaries
covered by the Pledge Agreements are duly authorized, validly existing, fully
paid and nonassessable. Based on our review of the minute books and stock
transfer records of the Domestic Subsidiaries, the certificates listed on Schedule
3 attached hereto are now the sole instruments representing the shares of
such Pledged Stock. The security interests created by the Pledge Agreements, to
the extent they may be perfected by the filing in the State of Tennessee of UCC
financing statements, were perfected upon the filing of the Financing Statements
in the Filing Office, which Filing Office was the only office in the State of
Tennessee in which the Financing Statements were required to be filed at the
time of such filing in order to perfect the Agent’s security interests in the
Pledged Stock under the Pledge Agreements.

10.       None of the Credit Parties is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.

11.       None of the Credit Parties is a "public utility company",
"holding company" or a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.

Our opinions set forth above are
subject to the following qualifications:

A.        Our opinions herein are
limited to (i) the laws of the States of Georgia and North Carolina, (ii) any
applicable federal laws of the United States, (iii) Articles 8 and 9 of the
Uniform Commercial Code as in effect as of this date in the State of Tennessee
(the "Tennessee UCC"), and (iv) the General Corporation Law of
the State of Delaware, the Florida Business Corporation Act, the Kentucky
Business Corporation Act, the Business Corporation Act of the State of Illinois,
the General Corporation Law of the State of Maryland, the Business Corporation
Act of Michigan, the Business Corporation Act of the State of Mississippi, the
General and Business Corporation Law of the State of Missouri, the Business
Corporation Act of the State of Oregon, the Corporation Law of the Commonwealth
of Pennsylvania, the Business Corporation Act of the State of Tennessee and
Texas Business Corporation Act (such state corporation laws and acts, other than
those of the State of Georgia, being herein collectively called the "Other
Corporate Laws"). We are not members of state bar of Delaware, Florida,
Illinois, Kentucky, Maryland, Michigan, Mississippi, Missouri, Oregon,
Pennsylvania, Tennessee or Texas and we do not purport to be experts on the laws
of the such states. To the extent that our opinions herein involve consideration
of any of the Other Corporate Laws, such consideration is based on our review of
unofficial compilations thereof published by Prentice Hall Information Services
as supplemented as of the date hereof. To the extent that our opinions herein
involve consideration of the Tennessee UCC, such consideration is based on our
review of an unofficial compilation thereof published by Commerce Clearing House
as supplemented as of the date hereof. We express no opinion herein with respect
to any laws of the States of Delaware, Florida, Illinois, Kentucky, Maryland,
Michigan, Mississippi, Missouri, Oregon, Pennsylvania, Tennessee or Texas other
than the Other Corporate Laws and the Tennessee UCC. We express no opinion
herein as to the effect (if any) which the laws of any jurisdiction in which any
Foreign Subsidiary is formed may have on the validity, perfection or priority of
the Agent’s security interest under any Pledge Agreement in any of the
Collateral which constitutes Pledged Stock of such Foreign Subsidiary.

B.       Our opinions herein regarding
the validity, legality, binding effect or enforceability of any Document or the
validity, legality, enforceability, perfection or priority of any Lien of the
Agent or Lenders thereunder are subject to: (i) the effect of applicable
bankruptcy, fraudulent transfer, moratorium, insolvency, reorganization, or
other similar laws affecting the rights of creditors generally; and (ii) the
effect of general principles of equity, whether applied by a court of equity or
law.

 

E-5



 

C.       With respect to our opinions
herein regarding the enforceability of any Documents or the Agent’s or Lenders’
Liens thereunder, we have assumed that, to the extent that any applicable law
would require that any rights or remedies of the Lenders or the Agent set forth
in such Documents or relating to such Liens be exercised by any Lender or the
Agent in good faith or in a reasonable or commercially reasonable manner as a
condition to the enforceability thereof, such Lender or Agent will observe and
satisfy such legal requirements.

D.       Our opinions in paragraphs
number 8 and 9 above are subject to the following additional exceptions,
assumptions and qualifications: (i) we note that the perfection and priority of
the Agent’s security interest under and Pledge Agreement or the Security
Agreement in any proceeds of the Pledged Stock or the UCC Collateral covered
thereby may be limited under Section 9-315 of the Uniform Commercial Code as in
effect in any applicable jurisdiction, and we also note that Section 552 of the
U.S. Bankruptcy Code limits the extent to which property acquired by a debtor
after commencement of a case under the U.S. Bankruptcy Code may be subject to a
security interest arising under a security agreement entered into by the debtor
prior to the commencement of such case; (ii) we express no opinion with respect
to the perfection of the security interests created under the Pledge Agreement
or the Security Agreement in such of the Collateral covered thereby which
constitutes property of a type in which a security interest must be perfected
under the UCC other than by the filing of a UCC financing statement in the State
of Tennessee; (iii) we call your attention to the fact that the perfection of a
security interest perfected by the filing of a financing statement in the State
of Tennessee will be terminated (1) pursuant to Section 9-507(c) of the UCC, as
to any property covered thereby which is acquired by a debtor more than four
months after such debtor so changes its name as to make the financing statement
seriously misleading unless an amendment to the financing statement which
renders the financing statement not seriously misleading is filed before the
expiration of such four-month period, (2) pursuant to Section 9-316 of the UCC,
four months after a debtor changes its location, which, for a "registered
organization" (as such term is defined in the UCC), includes becoming
organized under the laws of a state other than its state of incorporation as
indicated on Schedule 1 attached hereto, and (3) pursuant to Section
9-316, one year after the transfer of any UCC Collateral by the debtor to a
person that thereby becomes a debtor and is located in another jurisdiction,
including without limitation any merger or consolidation of the debtor into
another person, unless such security interest becomes perfected under the laws
of such other jurisdiction prior to such termination; (iv) we express no opinion
as to the validity, perfection or priority of the security interest with respect
to any UCC Collateral in the possession of any Credit Party on a "sale on
approval" basis or a "consignment" basis as set forth in
&sec; 9-403 of the UCC; and (v) we note that, under Section 9-515 of the UCC,
in order to continue the perfection of a secured party’s security interest, a
continuation statement with respect to the financing statement must be filed
within the period of six months prior to the expiration of five years from the
date of filing the financing statement. The opinions expressed in paragraphs 8
and 9 above also are subject to the effect of bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting the rights of
creditors, including the United States Bankruptcy Code in its entirety. Except
to the extent expressly stated in paragraph 9 above, we express no opinion
herein with respect to any Credit Party’s title to any of the Pledged Stock
and the Collateral. Except to the extent expressly stated in paragraph number 8
above, we express no opinion herein with respect to the perfection or priority
of the Agent’s Liens under the Documents. We call your attention to the fact
that any security interest created under the Security Agreement in any of the
Collateral consisting of accounts, chattel paper or general intangibles may be
subject to the rights, claims or defenses of the account debtor obligated
thereon and to the terms of any applicable agreement between the applicable
Credit Party and such account debtor.

E.       We express no opinion herein
as to the legality, validity, binding effect or enforceability of any of the
following provisions in the Documents: (i) any provisions which purport to waive
any defense, counterclaim, set-off or deduction arising from any violation by
any Lender or Agent of any applicable federal or state securities or usury laws,
any fraud or duress on the part of any Lender or Agent, or any failure on the
part of any Lender or Agent to give notice of a disposition of any personal
property collateral other than in a commercially reasonable manner; (ii) any
provisions which purport to grant any Lender or Agent a right of offset against
special accounts; (iii) any provisions which purport to permit any Lender or
Agent to give notice of the time and place of any sale or other intended
disposition of any personal property collateral for a period or in a manner
which may be deemed to be manifestly unreasonable or to the extent such
provisions purport to constitute an agreement prior to

 

E-6



 

 default that any sale or
other disposition by any Lender or Agent of any personal property collateral
shall be deemed to have been made in a commercially reasonable manner; (iv) any
provisions which submit any person to the personal jurisdiction or venue of any
particular court for the enforcement of any Documents or waive any personal
rights under the laws of any jurisdiction to object to the jurisdiction or venue
of any court for the purpose of litigation to enforce any of the Documents or
which purport to waive any right to a trial by jury or which purport to waive
the application of any statute of limitation; and (v) any provisions of any of
the Documents which purport to waive any defense based upon any election of
remedies by any of the Lenders or Agent. Further, we are unable to opine that
any provisions of any of the Credit Documents which provide for the giving of
notice by mail will not be interpreted by a court as requiring actual receipt of
the notice by the addressee, notwithstanding any agreement of the parties that
posting by mail constitutes sufficient giving of such notice. We also note that,
to the extent that any of the Documents require any Credit Party to pay the
attorney’s fees of any Lender or Agent, such provisions may be subject to
compliance with any prior notice requirements or any dollar limitations on
collectible attorney’s fees that may be imposed under applicable law. We also
note that the enforceability of provisions in the Documents to the effect that
any failure to exercise or any delay in exercising rights or remedies thereunder
will not operate as a waiver thereof or that any modification to the Documents
or any waivers of the rights and remedies thereunder can only be made in writing
may be subject to any applicable laws which give effect to mutual departures
from the strict terms of written contracts.

F.       Certain waivers of notices
and other rights and remedial provisions contained in the Documents may be
unenforceable under applicable law, but the Documents contain adequate other
provisions for enforcing payment of the obligations evidenced, guaranteed or
secured thereby and for the practical realization of the security and other
rights and remedies afforded thereby, and the inclusion of such waivers, rights
and remedial provisions in the Documents does not affect the legality, validity
or binding effect of such Documents or affect the enforceability of the other
provisions of the Documents.

G.       We express no opinion herein
as to the legality, validity, binding effect or enforceability of any
indemnification provisions in any of the Documents to the extent that the
enforcement thereof would contravene matters of public policy.

This letter has been delivered
solely for the benefit of the Lenders, the Agent and their respective counsel
pursuant to Section 5.1 of the Credit Agreement and may not be relied
upon by any other person or entity or for any other purpose without our express
written permission. We expressly disclaim any duty to update this letter in the
future in the event there are any changes in relevant fact or law that may
change or otherwise affect any of the opinions or confirmations expressed
herein.

 

		
                            Very
                            truly yours,

                            
                            KILPATRICK
                            STOCKTON LLP

                            
                             

                            By:___________________________

                            Hilary P. Jordan, a Partner

    



 

 

 


E-7



 


 

EXHIBIT A

 

SUPPORTING CERTIFICATE


 

The undersigned, Frank Madonia,
in his capacity as Executive Vice President, Secretary and General Counsel of
Miller Industries, Inc., a Tennessee corporation ("Miller"),
has executed this Certificate in connection with the legal opinion of even date
(the "Opinion") to be rendered by Kilpatrick Stockton LLP
pursuant to Section 5.1 of that certain Amended and Restated Credit
Agreement, dated as of July 23, 2001, as amended (the "Credit
Agreement"), among Miller, Miller Industries Towing Equipment Inc., the
Lenders listed therein, and Bank of America, N.A., as Agent. The undersigned
authorizes Kilpatrick Stockton LLP to rely on the matters set forth in this
Certificate in rendering the Opinion. This Certificate may not be relied on by
any person other than Kilpatrick Stockton LLP or such Lenders, such Agent, and
their respective counsel, or for any purpose other than the credit transactions
contemplated by the Credit Agreement without the express prior written consent
of the undersigned. Capitalized terms used in this Certificate shall have the
meanings set forth or referred to in the Opinion unless otherwise defined
herein.

Whenever any statement herein
with reference to the existence or absence of any facts is indicated to be based
on the undersigned’s knowledge or awareness, it is intended to signify that
such indication is to the best of his present knowledge obtained during the
general and ordinary course of exercising his duties as Executive Vice
President, Secretary and General Counsel of Miller. The undersigned has not
undertaken any independent investigation to determine the existence or absence
of such facts and no inference as to his knowledge of the existence or absence
of such facts should be imputed to him or drawn from his serving as Executive
Vice President, Secretary and General Counsel of Miller.

The undersigned knows of no
reason why he, Kilpatrick Stockton LLP, the Lenders and the Agent are not
justified in relying on the representations and warranties given on the Closing
Date by Miller and the other Credit Parties in the Credit Agreement or any other
Loan Document and the certificates of the various officers of Miller and the
other Credit Parties furnished on the Closing Date in connection therewith.

Subject to the foregoing, the
undersigned, in his representative capacity as Executive Vice President,
Secretary and General Counsel of Miller, hereby certifies, to the best of his
actual knowledge, that:

12.       Each Credit Party has at all
material times had a registered agent and office in the state of its
incorporation and has notified the Secretary of State of such state of any
change in its registered agent or registered office or any resignation of its
registered agent or any discontinuation of its registered office, and no Credit
Party has received any notice from such Secretary of State of any determination
that any grounds exist for administratively dissolving such Credit Party, and no
Credit Party has received notice of the commencement of any proceeding to
judicially dissolve such Credit Party, and neither the board of directors nor
the shareholders of such Credit Party have taken any action with respect to the
dissolution of such Credit Party, and no Credit Party has filed any notice of
intent to dissolve with such state.

13.       Neither the execution or
delivery by any Credit Party of, nor performance by any Credit Party of its
obligations under, the Documents (a) does or will conflict with, violate or
constitute a breach of (i) the Certificate or Articles of Incorporation or the
Bylaws of any Credit Party, (ii) any laws, rules or regulations applicable to
any Credit Party, (iii) any contract or other agreement to which any Credit
Party is a party or by which any of its properties is bound, (iv) any judgment,
writ, determination, order, decree or arbitral award to which any Credit Party
is a party or by which any Credit Party or any of its properties is bound, (v)
requires the consent of, notice to, license from or filing with any Governmental
Authority which has not been duly obtained or made on or prior to the date
hereof (other than such filings as may be necessary in order to perfect any of
the Liens of the Agent or the Lenders under the Documents), or (vi) does or will
result in the creation or imposition of any lien, pledge, charge or encumbrance
of any nature upon or with respect to any of the properties of any Credit Party
(other than any Liens of the Agent and the Lenders under the Documents).

14.       Except as disclosed on Schedule
6.10 to the Credit Agreement, there is on this date no pending or threatened
action, suit, investigation or proceeding (including, without limitation, any
action, suit, investigation or proceeding under any environmental or labor law)
before or by any court or governmental department, commission, board, bureau,
instrumentality, agency or arbitral authority, (i) which calls into question the
validity or enforceability of any of the Documents or the titles to their
respective offices or authority of any of the officers of any Credit Party or
(ii) which, if adversely determined, could reasonably be expected to have a
Material Adverse Effect.

 

E-8



 

15.       All of the shares of the
Pledged Stock of the New Domestic Subsidiaries covered by the Pledge Agreements
are duly authorized, validly existing, fully paid and nonassessable. The
certificates listed on Schedule 3 attached to the Opinion are now the
sole instruments representing the shares of such Pledged Stock.

IN WITNESS WHEREOF, the
undersigned has hereunto set his hand and seal this ___ day of July, 2001.

 


	 	
       

      ________________________________________-

      
      FRANK MADONIA

      
      
      Executive Vice President,
      Secretary and General Counsel of Miller Industries, Inc.

    




 

 


E-9




 

 

SCHEDULE 1



 


GUARANTORS


 


	
      Name of Entity

      

      	
      State of Incorporation
	
      State(s) of Qualification

	
      Miller Industries, Inc.
	
      Tennessee
	
      Georgia

      Oregon

    
	
      A-Excellence Towing Co.
	
      Delaware
	
      Illinois

	
      Ackerman Wrecker Service,
      Inc.
	
      Delaware
	
      Georgia

	
      All American Towing
      Services, Inc.
	
      Delaware
	
      Florida

	
      Allied Gardens Towing,
      Inc.
	
      Delaware
	
      California

	
      Allied Towing and
      Recovery, Inc.
	
      Delaware
	
      Oklahoma

	
      Altamonte Towing, Inc.
	
      Delaware
	
      Florida

	
      Anderson Towing Service,
      Inc.
	
      Delaware
	
      Nevada

	
      APACO, Inc.
	
      Delaware
	
      Tennessee

	
      Arrow Wrecker Service,
      Inc.
	
      Delaware
	
      Oklahoma

	
      A to Z Enterprises, Inc.
	
      Delaware
	
      California

	
      B&B Associated
      Industries, Inc.
	
      Delaware
	
      Illinois

      Indiana

	
      B-G Towing, Inc.
	
      Delaware
	
      Oregon

	
      Bear Transportation, Inc.
	
      Delaware
	
      Florida

	
      Beaty Towing &
      Recovery, Inc.
	
      Delaware
	
      North Carolina

	
      Bert’s Towing Recovery
      Corporation
	
      Delaware
	
      Illinois

      Indiana

    
	
      Bob’s Auto Service, Inc.
	
      Delaware
	
      Colorado

	
      Bob Bolin Services, Inc.
	
      Delaware
	
      Missouri

	
      Bob Vincent and Sons
      Wrecker Service, Inc.
	
      Kentucky
	
      None

	
      Boulevard & Trumbull
      Towing, Inc.
	
      Delaware
	
      Michigan

	
      Brewer’s, Inc.
	
      Delaware
	
      Michigan

	
      Bryrich Corporation
	
      Delaware
	
      California

	
      C&L Towing Services,
      Inc.
	
      Delaware
	
      New Jersey

	
      Cal West Towing, Inc.
	
      Delaware
	
      California

	
      Cardinal Centre
      Enterprises, Inc.
	
      California
	
      None

	
      Cedar Bluff 24 Hour
      Towing, Inc.
	
      Delaware
	
      Tennessee

	
      Central Valley Towing,
      Inc.
	
      Delaware
	
      California

	
      Century Holdings, Inc.
	
      Tennessee
	
      None

	
      Chad’s, Inc.
	
      Delaware
	
      Georgia

	
      Champion Carrier
      Corporation
	
      Delaware
	
      Pennsylvania

	
      Chevron, Inc.
	
      Pennsylvania
	
      None

	
      Chicago Metro Services,
      Inc.
	
      Illinois
	
      None

	
      Clarence Cornish
      Automotive Service, Inc.
	
      Delaware
	
      Texas

	
      Cleveland Vehicle
      Detention Center, Inc.
	
      Delaware
	
      Ohio

	
      Coffey’s Towing, Inc.
	
      Delaware
	
      Ohio

	
      Coleman’s Towing &
      Recovery, Inc.
	
      Michigan
	
      None

	
      Competition Wheelift, Inc.
	
      Delaware
	
      California

	
      D.A. Haneline, Inc.
	
      Delaware
	
      Ohio

	
      DVREX, Inc.
	
      Texas
	
      None

	
      Dick’s Towing & Road
      Service, Inc.
	
      Delaware
	
      Washington

	
      Dollar Enterprises, Inc.
	
      Delaware
	
      Florida

	
      Don’s Towing, Inc.
	
      Delaware
	
      Illinois



   


   


  E-10




   


	
      Name of Entity

      

      	
      State of Incorporation
	
      State(s) of Qualification




  	
      Dugger’s Services, Inc.
	
      Delaware
	
      New Mexico

	
      Dun-Rite Towing Inc.
	
      Delaware
	
      New York

	
      DuRu, Inc.
	
      Delaware
	
      California

	
      E.B.T., Inc.
	
      Delaware
	
      Michigan

	
      Export Enterprises, Inc.
	
      Delaware
	
      Massachusetts

	
      Gary’s Towing &
      Salvage Pool, Inc.
	
      Delaware
	
      Arizona

	
      Golden West Towing
      Equipment Inc.
	
      Delaware
	
      California

	
      Good Mechanic Auto Co. of
      Richfield, Inc.
	
      Delaware
	
      Ohio

	
      Great America Towing, Inc.
	
      Delaware
	
      California

	
      Greg’s Towing, Inc.
	
      Delaware
	
      Florida

	
      H&H Towing
      Enterprises, Inc.
	
      Delaware
	
      North Carolina

	
      Hall’s Towing Service,
      Inc.
	
      Delaware
	
      Mississippi

	
      Hendrickson Towing, Inc.
	
      Delaware
	
      New York

	
      H.M.R. Enterprises, Inc.
	
      Maryland
	
      None

	
      Interstate Towing &
      Recovery, Inc.
	
      Delaware
	
      Florida

	
      Kauff’s, Inc.
	
      Delaware
	
      Florida

	
      Kauff’s of Ft. Pierce,
      Inc.
	
      Florida
	
      None

	
      Kauff’s of Miami, Inc.
	
      Florida
	
      None

	
      Kauffs of Palm Beach, Inc.
	
      Florida
	
      None

	
      Ken’s Towing, Inc.
	
      Delaware
	
      Washington

	
      King Automotive &
      Industrial Equipment, Inc.
	
      Delaware
	
      Florida

	
      Lazer Tow Services, Inc.
	
      Delaware
	
      Missouri

	
      Levesque’s Auto Service,
      Inc.
	
      Delaware
	
      Massachusetts

	
      LWKR, Inc.
	
      Delaware
	
      Texas

	
      Lincoln Towing
      Enterprises, Inc.
	
      Delaware
	
      Washington

	
      M&M Towing and
      Recovery
	
      Delaware
	
      Ohio

	
      Maejo, Inc.
	
      Delaware
	
      Oregon

	
      Mel’s Acquisition Corp.
	
      Delaware
	
      None

	
      Merl’s Towing Service,
      Inc.
	
      Delaware
	
      Michigan

	
      Mid America Wrecker &
      Equipment Sales, Inc. of Colorado
	
      Delaware
	
      Colorado

	
      Mike’s Wrecker Service,
      Inc.
	
      Delaware
	
      Michigan

	
      Miller Financial Services
      Group, Inc.
	
      Tennessee
	
      Arizona

      California

      Florida

      Georgia

      Michigan

      Mississippi

      New Jersey

      New York

      Ohio

      Pennsylvania

      Texas

    
	
      Miller/Greeneville, Inc.
	
      Tennessee
	
      None

	
      Miller Industries
      Distributing, Inc.
	
      Delaware
	
      None

	
      Miller Industries
      International, Inc.
	
      Tennessee
	
      None

	
      Miller Industries Towing
      Equipment Inc.
	
      Delaware
	
      Louisiana

      Tennessee

    
	
      Moore’s Service &
      Towing, Inc.
	
      Delaware
	
      Indiana



   

   

  E-11



   

	
      Name of Entity

      

      	
      State of Incorporation
	
      State(s) of Qualification



  	
      Moore’s Towing Service,
      Inc.
	
      Delaware
	
      Indiana

	
      Mosteller’s Garage, Inc.
	
      Delaware
	
      Tennessee

	
      Murphy’s Towing, Inc.
	
      Delaware
	
      Florida

	
      Official Towing, Inc.
	
      Delaware
	
      Michigan

	
      O’Hare Truck Service,
      Inc.
	
      Delaware
	
      Illinois

	
      P.A.T., Inc.
	
      Delaware
	
      Illinois

	
      Pipes Enterprises, Inc.
	
      Delaware
	
      Missouri

	
      Pro Tow, Inc.
	
      Delaware
	
      Massachusetts

	
      Pullen’s Truck Center,
      Inc.
	
      Delaware
	
      New York

	
      Purpose, Inc.
	
      Delaware
	
      Missouri

	
      RAR Enterprises, Inc.
	
      Delaware
	
      District of Columbia

      Maryland

	
      RMA Acquisition Corp.
	
      Delaware
	
      None

	
      RRIC Acquisition Corp.
	
      Delaware
	
      None

	
      Randy’s High Country
      Towing, Inc.
	
      Delaware
	
      Colorado

	
      Ray Harris, Inc.
	
      Delaware
	
      North Carolina

	
      Ray’s Towing, Inc.
	
      Delaware
	
      Wisconsin

	
      RBEX, Inc.
	
      Delaware
	
      Texas

	
      Recovery Services, Inc.
	
      Delaware
	
      New Mexico

	
      RTIEX, Inc. (f/k/a
      Retriever Towing, Inc.)
	
      Oregon
	
      None

	
      Road One, Inc.
	
      Delaware
	
      Florida

      Massachusetts

      Michigan

      New York

      North Carolina

      Ohio

      Tennessee

    
	
      RoadOne Employee Services,
      Inc.
	
      Delaware
	
      Tennessee

	
      Road One Insurance
      Services, Inc.
	
      Delaware
	
      Tennessee

	
      Road One Service, Inc.
	
      Delaware
	
      Tennessee

	
      RoadOne Specialized
      Transportation, Inc.
	
      Delaware
	
      Michigan

      Texas

    
	
      RoadOne Transportation and
      Logistics, Inc.
	
      Delaware
	
      Michigan

	
      R.M.W.S., Inc.
	
      Delaware
	
      Texas

	
      Sakstrup Towing, Inc.
	
      Delaware
	
      Michigan

	
      Sandy’s Auto & Truck
      Service, Inc.
	
      Delaware
	
      Ohio

	
      Sonoma Circuits, Inc.
	
      Delaware
	
      California

	
      Southern Wrecker Center,
      Inc.
	
      Delaware
	
      Alabama

      Mississippi

    
	
      Southern Wrecker Sales,
      Inc.
	
      Delaware
	
      Georgia

      Florida

      Tennessee

    
	
      Southwest Transport, Inc.
	
      Florida
	
      None

	
      Speed’s Automotive, Inc.
	
      Oregon
	
      None

	
      Speed’s Rentals, Inc.
	
      Oregon
	
      None

	
      Sroga’s Automotive
      Services, Inc.
	
      Delaware
	
      Minnesota

	
      Suburban Wrecker Service,
      Inc.
	
      Delaware
	
      Indiana

      Kentucky

    
	
      Team Towing and Recovery,
      Inc.
	
      Illinois
	
      None

	
      Ted’s of Fayville, Inc.
	
      Delaware
	
      Massachusetts



   

  E-12



   

	
      Name of Entity

      

      	
      State of Incorporation
	
      State(s) of Qualification



  	
      Texas Towing Corporation
	
      Delaware
	
      Texas

	
      Thompson’s Wrecker
      Service, Inc.
	
      Delaware
	
      Mississippi

	
      Tow Pro Custom Towing
      & Hauling, Inc.
	
      Delaware
	
      Tennessee

	
      Treasure Coast Towing,
      Inc.
	
      Delaware
	
      Florida

	
      Treasure Coast Towing of
      Martin County, Inc.
	
      Florida
	
      None

	
      Truck Sales & Salvage
      Co., Inc.
	
      Delaware
	
      Ohio

	
      Walker Towing, Inc.
	
      Delaware
	
      Nevada

	
      Wes’s Service
      Incorporated
	
      Delaware
	
      Illinois

	
      Western Towing; McClure/Earley
      Enterprises, Inc.
	
      Delaware
	
      Arizona

	
      Whitey’s Towing, Inc.
	
      Delaware
	
      None

	
      Wiltse Towing, Inc.
	
      Delaware
	
      Oregon

	
      Zebra Towing, Inc.
	
      Delaware
	
      South Carolina

	
      Zehner Towing &
      Recovery, Inc.
	
      Delaware
	
      Indiana





 

 

 


E-13




 

 

 

SCHEDULE 2

 

CERTIFICATES OF GOOD
STANDING/EXISTENCE

 



  
	
      Name of Entity
	
      State
	
      Date Issued

	
      Miller Industries, Inc.
	
      Georgia

      Oregon

      Tennessee

    	 
	
      A-Excellence Towing Co.
	
      Delaware

      Illinois

    	 
	
      Ackerman Wrecker Service,
      Inc.
	
      Delaware

      Georgia

    	 
	
      All American Towing
      Services, Inc.
	
      Delaware

      Florida

    	 
	
      Allied Gardens Towing,
      Inc.
	
      California

      Delaware

    	 
	
      Allied Towing and
      Recovery, Inc.
	
      Delaware

      Oklahoma

    	 
	
      Altamonte Towing, Inc.
	
      Delaware

      Florida

    	 
	
      Anderson Towing Service,
      Inc.
	
      Delaware

      Nevada

    	 
	
      APACO, Inc.
	
      Delaware

      Tennessee

    	 
	
      Arrow Wrecker Service,
      Inc.
	
      Delaware

      Oklahoma

    	 
	
      A to Z Enterprises, Inc.
	
      California

      Delaware

    	 
	
      B&B Associated
      Industries, Inc.
	
      Delaware

      Illinois

      Indiana

    	 
	
      B-G Towing, Inc.
	
      Delaware

      Oregon

    	 
	
      Bear Transportation, Inc.
	
      Delaware

      Florida

    	 
	
      Beaty Towing &
      Recovery, Inc.
	
      Delaware

      North Carolina

    	 
	
      Bert’s Towing Recovery
      Corporation
	
      Delaware

      Illinois

      Indiana

    	 
	
      Bob’s Auto Service, Inc.
	
      Colorado

      Delaware

    	 
	
      Bob Bolin Services, Inc.
	
      Delaware

      Missouri

    	 
	
      Bob Vincent and Sons
      Wrecker Service, Inc.
	
      Kentucky
	 
	
      Boulevard & Trumbull
      Towing, Inc.
	
      Delaware

      Michigan

    	 
	
      Brewer’s, Inc.
	
      Delaware

      Michigan

    	 
	
      Bryrich Corporation
	
      California

      Delaware

    	 
	
      C&L Towing Services,
      Inc.
	
      Delaware

      New Jersey

    


     


    E-14


  
  

     


  
     


    	Name
      of Entity	
      State
    
	
      Date Issued

	
      Cal West Towing, Inc.
	
      California

      Delaware

    	 
	
      Cardinal Centre
      Enterprises, Inc.
	
      California
	 
	
      Cedar Bluff 24 Hour
      Towing, Inc.
	
      Delaware

      Tennessee

    	 
	
      Central Valley Towing,
      Inc.
	
      California

      Delaware

    	 
	
      Century Holdings, Inc.
	
      Tennessee
	 
	
      Chad’s, Inc.
	
      Delaware

      Georgia

    	 
	
      Champion Carrier
      Corporation
	
      Delaware

      Pennsylvania

    	 
	
      Chevron, Inc.
	
      Pennsylvania
	 
	
      Chicago Metro Services,
      Inc.
	
      Illinois
	 
	
      Clarence Cornish
      Automotive Service, Inc.
	
      Delaware

      Texas

    	 
	
      Cleveland Vehicle
      Detention Center, Inc.
	
      Delaware

      Ohio

    	
      

    
	
      Coffey’s Towing, Inc.
	
      Delaware

      Ohio

    	 
	
      Coleman’s Towing &
      Recovery, Inc.
	
      Michigan
	 
	
      Competition Wheelift, Inc.
	
      California

      Delaware

    	 
	
      D.A. Haneline, Inc.
	
      Delaware

      Ohio

    	 
	
      DVREX, Inc.
	
      Texas
	 
	
      Dick’s Towing & Road
      Service, Inc.
	
      Delaware

      Washington

    	 
	
      Dollar Enterprises, Inc.
	
      Delaware

      Florida

    	 
	
      Don’s Towing, Inc.
	
      Delaware

      Illinois

    	 
	
      Dugger’s Services, Inc.
	
      Delaware

      New Mexico

    	 
	
      Dun-Rite Towing Inc.
	
      Delaware

      New York

    	 
	
      DuRu, Inc.
	
      California

      Delaware

    	 
	
      E.B.T., Inc.
	
      Delaware

      Michigan

    	 
	
      Export Enterprises, Inc.
	
      Delaware

      Massachusetts

    	 
	
      Gary’s Towing &
      Salvage Pool, Inc.
	
      Arizona

      Delaware

    	 
	
      Golden West Towing
      Equipment Inc.
	
      California

      Delaware

    	 
	
      Good Mechanic Auto Co. of
      Richfield, Inc.
	
      Delaware

      Ohio

    	 
	
      Great America Towing, Inc.
	
      California

      Delaware

    	 


   

  E-15

  
   



   


  
  	Name
      of Entity	State
    	Date
      Issued
	
      Greg’s Towing, Inc.
	
      Delaware

      Florida

    	 
	
      H&H Towing
      Enterprises, Inc.
	
      Delaware

      North Carolina

    	 
	
      Hall’s Towing Service,
      Inc.
	
      Delaware

      Mississippi

    	 
	
      Hendrickson Towing, Inc.
	
      Delaware

      New York

    	 
	
      H.M.R. Enterprises, Inc.
	
      Maryland
	 
	
      Interstate Towing &
      Recovery, Inc.
	
      Delaware

      Florida

    	 
	
      Kauff’s, Inc.
	
      Delaware

      Florida

    	 
	
      Kauff’s of Ft. Pierce,
      Inc.
	
      Florida
	 
	
      Kauff’s of Miami, Inc.
	
      Florida
	 
	
      Kauffs of Palm Beach, Inc.
	
      Florida
	 
	
      Ken’s Towing, Inc.
	
      Delaware

      Washington

    	 
	
      King Automotive &
      Industrial Equipment, Inc.
	
      Delaware

      Florida

    	 
	
      Lazer Tow Services, Inc.
	
      Delaware

      Missouri

    	 
	
      Levesque’s Auto Service,
      Inc.
	
      Delaware
	 
	
      Lewis Wrecker Service,
      Inc.
	
      Delaware

      Texas

    	 
	
      Lincoln Towing
      Enterprises, Inc.
	
      Delaware

      Washington

    	 
	
      M&M Towing and
      Recovery, Inc.
	
      Delaware

      Ohio

    	 
	
      Maejo, Inc.
	
      Delaware

      Oregon

    	 
	
      Mel’s Acquisition Corp.
	
      Delaware
	 
	
      Merl’s Towing Service,
      Inc.
	
      Delaware

      Michigan

    	 
	
      Mid America Wrecker &
      Equipment Sales, Inc. of Colorado
	
      Colorado

      Delaware

    	 
	
      Mike’s Wrecker Service,
      Inc.
	
      Delaware

      Michigan

    	 
	
      Miller Financial Services
      Group, Inc.
	
      Arizona

      California

      Florida

      Georgia

      Michigan

      Mississippi

      New Jersey

      New York

      Ohio

      Pennsylvania

      Tennessee

      Texas

    	 
	
      Miller/Greeneville, Inc.
	
      Tennessee
	 
	
      Miller Industries
      Distributing, Inc.
	
      Delaware
	 


   

  E-16

   

  


   


  
  	Name
      of Entity	State	Date
      Issued
	
      Miller Industries
      International, Inc.
	
      Tennessee
	 
	
      Miller Industries Towing
      Equipment Inc.
	
      Delaware

      Tennessee

      Louisiana

    	 
	
      Moore’s Service &
      Towing, Inc.
	
      Delaware

      Indiana

    	 
	
      Moore’s Towing Service,
      Inc.
	
      Delaware

      Indiana

    	 
	
      Mosteller’s Garage, Inc.
	
      Delaware

      Tennessee

    	 
	
      Murphy’s Towing, Inc.
	
      Delaware

      Florida

    	 
	
      Official Towing, Inc.
	
      Delaware

      Michigan

    	 
	
      O’Hare Truck Service,
      Inc.
	
      Delaware

      Illinois

    	 
	
      P.A.T., Inc.
	
      Delaware

      Illinois

    	 
	
      Pipes Enterprises, Inc.
	
      Delaware

      Missouri

    	 
	
      Pro-Tow, Inc.
	
      Delaware
	 
	
      Pullen’s Truck Center,
      Inc.
	
      Delaware

      New York

    	 
	
      Purpose, Inc.
	
      Delaware

      Missouri

    	 
	
      RAR Enterprises, Inc.
	
      Delaware

      District of Columbia

      Maryland

    	 
	
      RMA Acquisition Corp.
	
      Delaware
	 
	
      RRIC Acquisition Corp.
	
      Delaware
	 
	
      Randy’s High Country
      Towing, Inc.
	
      Colorado

      Delaware
	 
	
      Ray Harris, Inc.
	
      Delaware

      North Carolina

    	 
	
      Ray’s Towing, Inc.
	
      Delaware

      Wisconsin

    	 
	
      RBEX Inc.
	
      Delaware

      Texas

    	 
	
      Recovery Services, Inc.
	
      Delaware

      New Mexico

    	 
	
      RTIEX, Inc.
	
      Oregon
	 
	
      Road One, Inc.
	
      Delaware

      Florida

      Massachusetts

      Michigan

      North Carolina

      New York

      Ohio

      Tennessee

    	 
	
      RoadOne Employee Services,
      Inc.
	
      Delaware

      Tennessee

    	 


   

   

  E-17

  


   

   

   


  
	Name
      of Entity	State
    	Date
      Issued
	
      Road One Insurance
      Services, Inc.
	
      Delaware

      Tennessee

    	 
	
      Road One Service, Inc.
	
      Delaware

      Tennessee

    	 
	
      RoadOne Specialized
      Transportation, Inc.
	
      Delaware

      Michigan

      Texas

    	 
	
      RoadOne Transportation and
      Logistics, Inc.
	
      Delaware

      Michigan

    	 
	
      R.M.W.S., Inc.
	
      Delaware

      Texas

    	 
	
      Sakstrup Towing, Inc.
	
      Delaware

      Michigan

    	 
	
      Sandy’s Auto & Truck
      Service, Inc.
	
      Delaware

      Ohio

    	 
	
      Sonoma Circuits, Inc.
	
      California

      Delaware

    	 
	
      Southern Wrecker Center,
      Inc.
	
      Alabama

      Delaware

      Mississippi

    	 
	
      Southern Wrecker Sales,
      Inc.
	
      Delaware

      Florida

      Georgia

      Tennessee

    	 
	
      Southwest Transport, Inc.
	
      Florida
	 
	
      Speed’s Automotive, Inc.
	
      Oregon
	 
	
      Speed’s Rentals, Inc.
	
      Oregon
	 
	
      Sroga’s Automotive
      Services, Inc.
	
      Delaware

      Minnesota

    	 
	
      Suburban Wrecker Service,
      Inc.
	
      Delaware

      Indiana

      Kentucky

    	 
	
      Team Towing and Recovery,
      Inc.
	
      Illinois
	 
	
      Ted’s of Fayville, Inc.
	
      Delaware
	 
	
      Texas Towing Corporation
	
      Delaware

      Texas

    	 
	
      Thompson’s Wrecker
      Service, Inc.
	
      Delaware

      Mississippi

    	 
	
      Tow Pro Custom Towing
      & Hauling, Inc.
	
      Delaware

      Tennessee

    	 
	
      Treasure Coast Towing,
      Inc.
	
      Delaware

      Florida

    	 
	
      Treasure Coast Towing of
      Martin County, Inc.
	
      Florida
	 
	
      Truck Sales & Salvage
      Co., Inc.
	
      Delaware

      Ohio

    	 
	
      Walker Towing, Inc.
	
      Delaware

      Nevada

    	 
	
      Wes’s Service
      Incorporated
	
      Delaware

      Illinois

    	 
	
      Western Towing; McClure/Earley
      Enterprises, Inc.
	
      Delaware
	 
	
      Whitey’s Towing, Inc.
	
      Delaware
	 


   

  E-18

  


   


  
   

  	Name
      of Entity	State
    	Date
      Issued
	
      Wiltse Towing, Inc.
	
      Delaware

      Oregon

    	 
	
      Zebra Towing, Inc.
	
      Delaware

      South Carolina

    	 
	
      Zehner Towing &
      Recovery, Inc.
	
      Delaware

      Indiana

    	 


  

 

 

E-19



 

 

 

SCHEDULE 3

 

PLEDGED STOCK CERTIFICATES


 

 

 


	
      Name of Entity

      (the following are all
      business corporations unless otherwise indicated)

    	
      Number of Shares
	
      Type of Stock Issued
	
      Stock Certificate Number

	
      A-Excellence Towing Co.
	
      100
	
      Common
	
      2

	
      Ackerman Wrecker Service,
      Inc.
	
      100
	
      Common
	
      2

	
      All American Towing
      Services, Inc.
	
      100
	
      Common
	
      2

	
      Allied Gardens Towing, Inc.
	
      100
	
      Common
	
      2

	
      Allied Towing and Recovery,
      Inc.
	
      500
	
      Common
	
      2

	
      Altamonte Towing, Inc.
	
      100
	
      Common
	
      2

	
      Anderson Towing Service,
      Inc.
	
      100
	
      Common
	
      2

	
      APACO, Inc.
	
      100
	
      Common
	
      1

	
      Arrow Wrecker Service, Inc.
	
      500
	
      Common
	
      3

	
      A to Z Enterprises, Inc.
	
      13,100
	
      Common
	
      2

	
      B&B Associated
      Industries, Inc.
	
      100
	
      Common
	
      1

	
      B-G Towing, Inc.
	
      100
	
      Common
	
      2

	
      Bear Transportation, Inc.
	
      100
	
      Common
	
      1

	
      Beaty Towing &
      Recovery, Inc.
	
      100
	
      Common
	
      2

	
      Bert’s Towing Recovery
      Corporation
	
      100
	
      Common
	
      4

	
      Bob’s Auto Service, Inc.
	
      100
	
      Common
	
      2

	
      Bob Bolin Services, Inc.
	
      20,000
	
      Common
	
      6

	
      Bob Vincent and Sons
      Wrecker Service, Inc.
	
      75
	
      Common
	
      2

	
      Boulevard & Trumbull
      Towing, Inc.
	
      1,000
	
      Common
	
      2

	
      Brewer’s, Inc.
	
      1,000
	
      Common
	
      2

	
      Bryrich Corporation
	
      100
	
      Common
	
      2

	
      C&L Towing Services,
      Inc.
	
      100
	
      Common
	
      1

	
      Cal West Towing, Inc.
	
      100
	
      Common
	
      2

	
      Cardinal Centre
      Enterprises, Inc.
	
      3,501
	
      Common
	
      2

	
      Cedar Bluff 24 Hour Towing,
      Inc.
	
      100
	
      Common
	
      1

	
      Central Valley Towing, Inc.
	
      100
	
      Common
	
      2

	
      Century Holdings, Inc.
	
      100
	
      Common
	
      2

	
      Chad’s, Inc.
	
      100
	
      Common
	
      2

	
      Champion Carrier
      Corporation
	
      100
	
      Common
	
      2

	
      Chevron, Inc.
	
      1,746
	
      Common
	
      24

	
      Chicago Metro Services,
      Inc.
	
      3,000
	
      Common
	
      A-1

	
      Clarence Cornish Automotive
      Service, Inc.
	
      100
	
      Common
	
      2

	
      Cleveland Vehicle Detention
      Center, Inc.
	
      100
	
      Common
	
      1

	
      Coffey’s Towing, Inc.
	
      100
	
      Common
	
      2

	
      Coleman’s Towing &
      Recovery, Inc.
	
      100
	
      Common
	
      9

	
      Competition Wheelift, Inc.
	
      100
	
      Common
	
      1

	
      D.A. Haneline, Inc.
	
      100
	
      Common
	
      1

	
      DVREX, Inc. (formerly named
      Dallas Vehicle Recovery, Inc.)
	
      100
	
      Common
	
      11

	
      Dick’s Towing & Road
      Service, Inc.
	
      500
	
      Common
	
      5

	
      Dollar Enterprises, Inc.
	
      100
	
      Common
	
      1

	
      Don’s Towing, Inc.
	
      100
	
      Common
	
      2

	
      Dugger’s Services, Inc.
	
      100
	
      Common
	
      2

	
      Dun-Rite Towing Inc.
	
      100
	
      Common
	
      1



 

 

E-21



 

	
      Name of Entity

      (the following are all
      business corporations unless otherwise indicated)

      	
      Number of Shares
	Type of Stock Issued	
      Stock Certificate Number

	
      DuRu, Inc.
	
      100
	
      Common
	
      2

	
      E.B.T., Inc.
	
      10,000
	
      Common
	
      3

	
      Export Enterprises, Inc.
	
      100
	
      Common
	
      2

	
      Gary’s Towing &
      Salvage Pool, Inc.
	
      100
	
      Common
	
      2

	
      Golden West Towing
      Equipment Inc.
	
      120
	
      Common
	
      2

	
      Good Mechanic Auto Co. of
      Richfield, Inc.
	
      100
	
      Common
	
      1

	
      Great America Towing, Inc.
	
      100
	
      Common
	
      2

	
      Greg’s Towing, Inc.
	
      100
	
      Common
	
      1

	
      H&H Towing Enterprises,
      Inc.
	
      100
	
      Common
	
      1

	
      Hall’s Towing Service,
      Inc.
	
      525
	
      Common
	
      4

	
      Hendrickson Towing, Inc.
	
      100
	
      Common
	
      1

	
      H.M.R. Enterprises, Inc.
	
      5
	
      Common
	
      2

	
      Interstate Towing &
      Recovery, Inc.
	
      100
	
      Common
	
      1

	
      Kauff’s, Inc.
	
      100
	
      Common
	
      1

	
      Kauff’s of Ft. Pierce,
      Inc.
	
      100
	
      Common
	
      2

	
      Kauff’s of Miami, Inc.
	
      70,000
	
      Common
	
      5

	
      Kauffs of Palm Beach, Inc.
	
      105,000
	
      Common
	
      6

	
      Ken’s Towing, Inc.
	
      100
	
      Common
	
      2

	
      King Automotive &
      Industrial Equipment, Inc.
	
      200
	
      Common
	
      2

	
      Lazer Tow Services, Inc.
	
      100
	
      Common
	
      1

	
      Levesque’s Auto Service,
      Inc.
	
      100
	
      Common
	
      2

	
      L.W.K.R., Inc. (formerly
      named Lewis Wrecker Service, Inc.)
	
      1,000
	
      Common
	
      2

	
      Lincoln Towing Enterprises,
      Inc.
	
      100
	
      Common
	
      1

	
      M&M Towing and
      Recovery, Inc.
	
      100
	
      Common
	
      2

	
      Maejo, Inc.
	
      100
	
      Common
	
      2

	
      Mel’s Acquisition Corp.
	
      100
	
      Common
	
      1

	
      Merl’s Towing Service,
      Inc.
	
      100
	
      Common
	
      1

	
      Mid-America Wrecker &
      Equipment Sales, Inc. of Colorado
	
      100
	
      Common
	
      1

	
      Mike’s Wrecker Service,
      Inc.
	
      360
	
      Common
	
      5

	
      Miller Financial Services
      Group, Inc.
	
      1,000
	
      Common
	
      1

	
      Miller/Greeneville, Inc.
	
      100
	
      Common
	
      1

	
      Miller Industries
      Distributing, Inc.
	
      100
	
      Common
	
      1

	
      Miller Industries
      International, Inc.
	
      100
	
      Common
	
      2

	
      Miller Industries Towing
      Equipment Inc.
	
      3,000
	
      Common
	
      4

	
      Moore’s Service &
      Towing, Inc.
	
      100
	
      Common
	
      1

	
      Moore’s Towing Service,
      Inc.
	
      100
	
      Common
	
      1

	
      Mosteller’s Garage, Inc.
	
      100
	
      Common
	
      2

	
      Murphy’s Towing, Inc.
	
      100
	
      Common
	
      1

	
      Official Towing, Inc.
	
      100
	
      Common
	
      1

	
      O’Hare Truck Service,
      Inc.
	
      100
	
      Common
	
      1

	
      P.A.T., Inc. (formerly
      named Pete’s A Towing, Inc.)
	
      1,000
	
      Common
	
      2

	
      Pipes Enterprises, Inc.
	
      500
	
      Common
	
      2

	
      Pro-Tow, Inc.
	
      100
	
      Common
	
      2

	
      Pullen’s Truck Center,
      Inc.
	
      100
	
      Common
	
      2

	
      Purpose, Inc.
	
      500
	
      Common
	
      3

	
      RAR Enterprises, Inc.
	
      50
	
      Common
	
      2

	
      RMA Acquisition Corp.
	
      100
	
      Common
	
      1



 

      E-22

      

 

 

	Name of Entity

      (the following are all
      business corporations unless otherwise indicated)	Number of Shares	Type of Stock Issued	
      Stock Certificate Number

	
      RRIC Acquisition Corp.
	
      100
	
      Common
	
      1

	
      Randy’s High Country
      Towing, Inc.
	
      10,000
	
      Common
	
      2

	
      Ray Harris, Inc.
	
      100
	
      Common
	
      2

	
      Ray’s Towing, Inc.
	
      100
	
      Common
	
      2

	
      RBEX, Inc. (formerly known
      as Road Butler, Inc.)
	
      100
	
      Common
	
      1

	
      Recovery Services, Inc.
	
      100
	
      Common
	
      2

	
      RTIEX, Inc.
	
      222
	
      Common
	
      2

	
      Road One, Inc.
	
      100
	
      Common
	
      1

	
      RoadOne Employee Services,
      Inc.
	
      100
	
      Common
	
      2

	
      Road One Insurance
      Services, Inc.
	
      100
	
      Common
	
      1

	
      Road One Service, Inc.
	
      100
	
      Common
	
      1

	
      Road One Specialized
      Transportation, Inc.
	
      100
	
      Common
	
      1

	
      RoadOne Transportation and
      Logistics, Inc.
	
      100
	
      Common
	
      1

	
      R.M.W.S., Inc. (formerly
      named Ronny Miller Wrecker Service Inc.)
	
      1,000
	
      Common
	
      2

	
      Sakstrup Towing, Inc.
	
      100
	
      Common
	
      2

	
      Sandy’s Auto & Truck
      Service, Inc.
	
      10
	
      Common
	
      3

	
      Sonoma Circuits, Inc.
	
      100
	
      Common
	
      2

	
      Southern Wrecker Center,
      Inc.
	
      50
	
      Common
	
      2

	
      Southern Wrecker Sales,
      Inc.
	
      100
	
      Common
	
      1

	
      Southwest Transport, Inc.
	
      500
	
      Common
	
      4

	
      Speed’s Automotive, Inc.
	
      438
	
      Common
	
      4

	
      Speed’s Rentals, Inc.
	
      60
	
      Common
	
      2

	
      Sroga’s Automotive
      Services, Inc.
	
      100
	
      Common
	
      1

	
      Suburban Wrecker Service,
      Inc.
	
      100
	
      Common
	
      2

	
      Team Towing and Recovery,
      Inc.
	
      100
	
      Common
	
      5

	
      Ted’s of Fayville, Inc.
	
      1,900
	
      Common
	
      2

	
      Texas Towing Corporation
	
      100
	
      Common
	
      1

	
      Thompson’s Wrecker
      Service, Inc.
	
      100
	
      Common
	
      1

	
      Tow Pro Custom Towing &
      Hauling, Inc.
	
      100
	
      Common
	
      2

	
      Treasure Coast Towing, Inc.
	
      100
	
      Common
	
      1

	
      Treasure Coast Towing of
      Martin County, Inc
	
      500
	
      Common
	
      2

	
      Truck Sales & Salvage
      Co., Inc.
	
      100
	
      Common
	
      1

	
      Walker Towing, Inc.
	
      2,500
	
      Common
	
      2

	
      Wes’s Service
      Incorporated
	
      100
	
      Common
	
      3

	
      Western Towing; McClure/Earley
      Enterprises, Inc.
	
      100
	
      Common
	
      2

	
      Whitey’s Towing, Inc.
	
      100
	
      Common
	
      2

	
      Wiltse Towing, Inc.
	
      100
	
      Common
	
      2

	
      Zebra Towing, Inc.
	
      100
	
      Common
	
      2

	
      Zehner Towing &
      Recovery, Inc.
	
      100
	
      Common
	
      2




 

E-23



 

 

 

 


SCHEDULE 4

 

EXCEPTIONS

 

Consent of the Pennsylvania
Industrial Development Authority to the granting of certain liens and
encumbrances upon the property of Miller Industries, Inc. and Champion Carrier
Corporation.

 

 

E-24



 

 


EXHIBIT F


Compliance Certificate

Bank of America, N.A., 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
Amended and Restated Credit Agreement dated as of July 23, 2001 (, as from time
to time amended, restated, modified, replaced, or supplemented 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 Bank of
America, N.A., successor to Bank of America, N.A., 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 _____________, 20___ (the "Determination Date")
as follows:

 

	
1.

    	
Calculations:



    	


    
		A.	Compliance with
      Section 8.1
			(a)	Capital Expenditures:
	
        

    	
        

    	
        

    	
        

(i) Fiscal Year ending on April 30, 2002 = Cannot
exceed $5,600,000


        
(ii) Fiscal Year ending on April 30, 2003 = Cannot
exceed $6,250,000


        
(iii) Any Fiscal Year thereafter = Cannot
exceed $6,750,000
        

      

    
			(b)	Fixed
    Charge Coverage Ratio: Cannot
    be less than 1.0 to 1.0.
    

    
			(c)	EBITDA:

    
				



 


  
	
      Four-Quarter Periods
      Ending:
	
      Initial EBITDA

      Requirement:

      
    	
      Subsequent EBITDA

      Requirement:

    
	 	 	 
	
      From the Closing Date

      Through April 29, 2002

      
	
      $16,000,000
	
      $13,000,000

	
      From April 30, 2002

      Through April 29, 2003

      
	
      $19,000,000
	
      $13,000,000

	
      From April 30, 2003

      through Termination

    	
      $24,000,000
	
      $15,000,000



  
  


 

 

		B.	 Compliance with Section
8.4(a): Existing Indebtedness


			1.       Existing Indebtedness 	
      
    $__________

			Required:

          
      

           Not more than
        $1,000,000 outstanding at any time
          
    
		C. 	 Compliance with Section
8.4(d): Purchase Money Indebtedness

      and Capital Lease
    Obligations


        
         

          
F-1

        
        

         

        		1.	 Purchase money and
    Capital Lease obligations	 $__________
		Required: 
          

            	
        
         Not more than
        $5,000,000 outstanding at any time
          

            	
	D.	 Compliance with Section
8.4(e): Guarantees of Trade

              Account Indebtedness	
		1.	 Guarantees of trade
    account indebtedness	 $__________
		Required: 
          

            	
        
         Not more than $1,000,000 outstanding
        at any time
          

            	
	E.	 Compliance with Section
8.4(g): Guarantees of Asset Disposition	
		1.	 Guarantees of Asset
    Disposition	 $__________
		Required: 
          

            	
        
         Not more than $3,500,000 outstanding
        at any time
          

            	
	F.	 Compliance with Section
8.4(h): Guarantees of floor plan financing	
		1.	 Guarantees of floor plan
    financing	 $__________
		Required: 
          

            	
        
         Not more than
    $30,000,000 outstanding at any time	
	G.	 Compliance with Section
8.4(i): Guarantees of partial recourse obligations
		1.	 Guarantees of partial
    recourse obligations	 $__________
		Required: 
          

            	
        
         Not more than $1,000,000 outstanding
        at any time	
	H.	 Compliance with Section
8.4(l): intercompany Indebtedness from the RoadOne Borrowers
    to the Miller Borrowers incurred on or after the
    Closing Date
		1.	intercompany
              Indebtedness from the RoadOne Borrowers to the Miller Borrowers
              incurred on or after the Closing Date	 $__________
		Required: 
          

            	
        
         Not more than $7,000,000 outstanding
        at any time	
	I.	 Compliance with Section
    8.4(m): unsecured intercompany Indebtedness from the
    Borrowers or any Subsidiaries to any Foreign Subsidiaries
		1.	 unsecured intercompany
    Indebtedness from the Borrowers or any
        Subsidiaries to any Foreign Subsidiaries 	 $__________
		Required: 
          

            	
        
         Not more than $1,000,000 outstanding
        at any time	
			


          

  
    
      
      

    

  



    

    
          

  
  




  
     

    F-2

  





     

	J.	 Compliance with Section
    8.4(n): unsecured intercompany Indebtedness incurred on or
    after the Closing Date for loans and advances made by
    Miller or any Miller Borrower to any RoadOne
    Borrower



        		1.	 unsecured intercompany
    Indebtedness incurred on or after the
        Closing Date for loans and advances made
        by Miller or any Miller Borrower to
        any RoadOne Borrower	 $__________



        		Required: 
          

        	
        
         Not more than $1,000,000 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
IX 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 7.1 of the Agreement.

 

 

 

 

F-3



 

 

IN WITNESS WHEREOF, I have
executed this Certificate this ___ day of ___________, 20___.

 

 

 

 

		
                        By:________________________________

                        

                       Authorized
                          Representative

    

                        Name:__________________________________

                        Title:___________________________________

                        


                         

                         

                        F-4



                         

                         


EXHIBIT G

Form of Warrant Agreement

 


 

 

MILLER INDUSTRIES, INC.

 

 

  

  

      WARRANT AGREEMENT

      




 

 

 

________ ___, 2001

 

 

 



 

WARRANT AGREEMENT

 

WARRANT AGREEMENT, dated as of
________ ___, 2001 (this "Agreement"), among MILLER INDUSTRIES, INC.,
a Tennessee corporation (the "Corporation"), and each person attaching
a signature page hereto and each other institution which may hereafter execute
and deliver an instrument of assignment pursuant to Schedule 11.1 that certain
Amended and Restated Credit Agreement, dated _________ __, 2001, by and among
the Corporation, the Lenders party thereto and Bank of America, N.A., as Agent
for the Lenders (as amended, restated, supplemented, or modified, the
"Credit Agreement") (each an "Investor" and, collectively
the "Investors").

Pursuant to the terms of the
Credit Agreement, the Corporation has agreed to enter into this Agreement to
issue to the Investors warrants (the "Warrants") exercisable for
shares of common stock, $0.01 par value per share, of the Corporation (the
"Common Stock").

The Corporation has authorized
the issuance to the Investors and to their designated Affiliates (which are,
where applicable, referred to as Investors herein) of the Warrants under the
terms and conditions hereof, which number of shares is subject to increase or
decrease as provided herein.

In consideration of the
foregoing and of the representations, warranties and agreements contained in the
Credit Agreement, and for the purpose of defining the terms and provisions of
the Warrants and the Warrant Shares (as defined herein) and the respective
rights and obligations thereunder of the Corporation and the Holders (as defined
herein), the Corporation and the Investors hereby agree as follows:

 


ARTICLE 1


CERTAIN DEFINITIONS


 

For all purposes of this
Agreement, except as otherwise expressly provided:

(a)       the terms defined in this
Article 1 have the meanings assigned to them in this Article, and include the
plural as well as the singular;

(b)       the words
"herein," "hereof" and "hereunder," and other
words of similar import, refer to this Agreement as a whole and not to any
particular article, section or other subdivision; and

(c)       any capitalized term
otherwise not defined herein, shall have the meaning ascribed to it under the
Credit Agreement.

"Affiliate"
means, with respect to any person, any other person that directly or indirectly,
through one or more intermediaries, controls, is controlled by or is under
common control with the first mentioned person. A person shall be deemed to
control another person if such first person possesses directly or indirectly the
power to direct, or cause the direction of, the management and policies of the
second person, whether through the ownership of voting securities, by contract
or otherwise.

"Board" or
"Board of Directors" means the board of directors of the Corporation.

"Business Day"
means any day which is not a Saturday, Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law,
executive order, regulation or governmental decree to close.

"Capital Stock"
shall mean the Common Stock and preferred stock of the Corporation.

"Change of Control"
means: (i) the consummation of a merger or consolidation of the Corporation with
or into another entity or any other corporate reorganization, or transfer of
shares, in either case whereby any person or group acquires beneficial ownership
of more than 50% of the combined voting power of all classes of the continuing
or surviving entity’s capital stock outstanding immediately after such merger,
consolidation or other reorganization, or transfer of shares, or (ii) the sale,
transfer or other disposition of all or substantially all of the Corporation’s
assets. A transaction shall not constitute a Change of Control if its sole
purpose is to change the jurisdiction of the Corporation’s incorporation or
organization or to create a holding Corporation, subsidiary or other affiliate
that will be owned by the Corporation or by the persons who held the Corporation’s
securities immediately before such transaction in substantially the same
proportions as before.

 

G-1



 

"Closing" means
either the Tranche I Closing or the Tranche II Closing, whichever is applicable
for a particular Warrant.

"Commission"
means the Securities and Exchange Commission.

"Common Stock"
means the common stock, $0.01 par value per share, of the Corporation.

"Corporation"
has the meaning set forth in the preamble hereto.

"Credit Agreement"
has the meaning set forth in the preamble hereto.

"Exchange Act"
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.

"Exercise Price"
shall mean either the Tranche I Exercise Price or the Tranche II Exercise,
whichever is applicable for a particular Warrant.

"Expiration Date"
means either the Tranche I Expiration Date or the Tranche II Expiration Date,
whichever is applicable for a particular Warrant.

"Holders" means
the holders from time to time of the Warrants or the Warrant Shares issued upon
exercise of the Warrants.

"Independent Valuation
Firm" means an independent, experienced appraisal firm which is a
member of a recognized professional association of business appraisers
acceptable to a majority of the Board of Directors of the Corporation and the
applicable Holder and which has not been called upon to audit the financial
statements of the Corporation or such Holder.

"Market Price"
shall mean on any date specified herein, with respect to Common Stock or to
common stock (or equivalent equity interests) issued pursuant to a Change of
Control, the amount per share equal to (i) the average sale price of the last
sale price of shares of Common Stock, regular way, or of shares of such common
stock (or equivalent equity interests) for the immediately preceding twenty (20)
Business Days (or such other period as may be specified in this Warrant) or, if
no such sale takes place on any such date, the average of the closing bid and
asked prices thereof on such date, in each case as officially reported on the
principal national securities exchange on which the same are then listed or
admitted to trading, or (ii) if no shares of Common Stock or no shares of such
common stock (or equivalent equity interests), as the case may be, are then
listed or admitted to trading on any national securities exchange, the average
sale price of the last sale price of shares of Common Stock, regular way, or of
shares of such common stock (or equivalent equity interests) for the immediately
preceding twenty (20) Business Days (or such other period as may be specified in
this Warrant), or, if no such sale takes place on any such date, the average of
the reported closing bid and asked prices thereof on such date, in each case as
quoted in the Nasdaq National Market or, if no shares of Common Stock or no
shares of such common stock (or equivalent equity interest), as the case may be,
are then quoted in the Nasdaq National Market or Nasdaq Smallcap Market, as
published by the National Quotation Bureau, Incorporated or any similar
successor organization, and in either case as reported by any member firm of the
New York Stock Exchange selected by the Corporation, or (iii) if no shares of
Common Stock or no shares of such common stock (or equivalent equity interests),
as the case may be, are then listed or admitted to trading on any national
securities exchange or quoted or published in the over-the-counter market, the
higher of (x) the book value thereof as determined by any firm of independent
public accountants of recognized standing selected by the Board of Directors of
the Corporation, as of the last day of any month ending within sixty (60) days
preceding the date as of which the determination is to be made or the price per
Warrant Share determined in good faith by the Board of Directors as of the
relevant Closing and notified to the Investors in accordance with Section 7.1
(the "Initially Determined Price"); provided, however, if any Investor
who is entitled to receive any Warrants with respect to the related Closing
objects to the Board of Directors’ determination of such Market Price pursuant
to clause (iii) above within five Business Days’ of receipt of such notice by
a written notice of objection delivered to the Corporation (an "Objection
Notice," and each Investor who has delivered an Objection Notice an
"Objecting Investor"), the Market Price shall be such price per
Warrant Share as of the relevant Closing as may be redetermined by the Board of
Directors in consultation with and subject to the agreement of each Objecting
Investor, each of whom shall be required to negotiate in good faith and use
commercially reasonable efforts to reach agreement prior to the Referral Date
(as defined herein) (and such price shall be final upon the agreement of each of
the Objecting Investors); provided, further that if the Board of Directors and
each Objecting Investor are not able to agree on the Market Price within ten
(10) Business Days after the Corporation’s receipt of all timely Objection
Notices (the "Referral Date"), the Market

 

G-2



 

 

Price shall be the price per
Warrant Share as of the relevant Closing determined by an Independent Valuation
Firm, not discounting value due to the fact that such securities constitute a
minority interest, and lack liquidity but assuming that the sale would be
between a willing buyer and a willing seller, neither of which is under any
compulsion to sell or buy. The Board of Directors shall submit its valuations
and any other relevant data, and any Investor may submit its own valuation and
any other data, to the Independent Valuation Firm and the Corporation shall
instruct, and shall use commercially reasonable efforts to cause, the
Independent Valuation Firm to make its own determination of the Market Price by
not later than fifteen (15) Business Days after the Referral Date. If the
Independent Valuation Firm fails to determine a price per share on or before the
twentieth (20th) Business Day following the Referral Date, the Initially
Determined Price shall be deemed final and binding. If the Independent Valuation
Firm determines a price per share on or before the twentieth (20th) Business Day
following the Referral Date, whether such price is higher or lower than the
Initially Determined Price, the determination of the final Market Price by such
Independent Valuation Firm shall be final and binding upon the parties. The
Corporation agrees to pay 50%, and the Objecting Investors jointly agree to pay
50%, of the fees and expenses of the Independent Valuation Firm.

"Securities Act"
means the Securities Act of 1933, as amended, and the rules and regulations of
the Commission promulgated thereunder.

"Tranche I Closing"
has the meaning set forth in Section 2.3(a) hereof.

"Tranche II Closing"
has the meaning set forth in Section 2.3(b) hereof.

"Tranche I Exercise
Price" is equal to the Market Price as of the Tranche I Closing.

"Tranche II Exercise
Price" is equal to the Market Price as of the Tranche II Closing.

"Tranche I Expiration
Date" for each Warrant issued pursuant to Section 2.3(a) hereunder, is
equal to the date that is seven years from the date hereof.

"Tranche II Expiration
Date" for each Warrant issued pursuant to Section 2.3(b) hereunder, is
equal to the date that is eight years from the date hereof.

"Tranche I Shares"
means the Warrant Shares (as adjusted in accordance with Section 4 herein) to be
issued in accordance with Section 2.3(a) hereof.

"Tranche II Shares"
means the Warrant Shares (as adjusted in accordance with Section 4 herein) to be
issued in accordance with Section 2.3(b) hereof.

"Transfer Legend"
means a legend in the form required by Section 2.2 hereof.

"Warrants" have
the meaning set forth in the preamble hereto.

"Warrant Certificates"
has the meaning set forth in Section 2.1 hereof.

"Warrant Shares"
means shares of Common Stock issuable upon exercise of a Warrant Certificate.

 


ARTICLE 2



RIGHT TO PURCHASE WARRANT SHARES


 


2.1       Form of Warrant Certificates. Any certificate representing the
Warrants (a "Warrant Certificate"), the form of which is attached
hereto as Exhibit A, shall be detachable from this Agreement and the Credit
Agreement and shall be dated the date on which it is signed by a duly authorized
officer of the Corporation and shall have such insertions as are appropriate or
required or permitted by this Agreement and may have such letters, numbers or
other marks of identification as the Corporation may deem appropriate and as are
not inconsistent with the provisions of this Agreement or the Credit Agreement.


2.2       Legend.
Each Warrant Certificate shall bear on the face thereof a legend (the "Transfer
Legend") substantially in the following form:

 

G-3



 

 


  
    
      
        "This Warrant has
        not been registered under the Securities Act of 1933, as amended (the
        "Act"), and may not be transferred in the absence of such
        registration or an exemption therefrom under such Act."

      

    

  



Except as otherwise permitted by
this Section 2.2, (a) each certificate for Common Stock (or other
security) issued upon the exercise of any Warrant, and (b) each certificate
issued upon the direct or indirect transfer of any such Common Stock (or other
security) shall be stamped or otherwise imprinted with a legend in substantially
the following form:


  
    
      
        "The shares
        represented by this certificate have not been registered under the
        Securities Act of 1933, as amended (the "Act"), and may not be
        transferred in the absence of such registration or an exemption
        therefrom under such Act."

      

    

  



The holder of any Warrant or
Warrant Share shall be entitled to receive from the Corporation, without
expense, new securities of like tenor not bearing the applicable legend set
forth above in this Section 2.2 when such securities shall have been (a)
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering such securities, (b) sold to the public
pursuant to Rule 144 or any comparable rule under the Securities Act, or (c)
when, in the opinion of independent counsel for the holder thereof experienced
in Securities Act matters, such restrictions are no longer required in order to
insure compliance with the Securities Act.


2.3       Warrant
Tranches


The Warrants shall be issuable
to the Investors in accordance with the provisions of this Section 2.3.


  
    (a)       Tranche I. On the
    earliest practicable date following the One-Year Anniversary (as defined in
    the Credit Agreement) (the "Tranche I Closing"), the Corporation
    shall issue to the Investors then a party to this Agreement Warrants
    exercisable for a number of Warrant Shares equal to (i) a fraction, the
    numerator of which shall be be the aggregate outstanding principal balance
    of the Term Loans as of the One-Year Anniversary and the denominator of
    which shall be the aggregate outstanding principal balance of the Term Loans
    as of the date hereof, multiplied by (ii) the product of 0.5% times
    the number of outstanding shares of Common Stock of the Corporation as of
    the One-Year Anniversary (the "Tranche I Shares"). Each Investor a
    party to this Agreement on the One-Year Anniversary shall receive that
    number of the Tranche I Shares that is equal to such Investor’s Applicable
    Commitment Percentage multiplied by the aggregate number of Tranche I Shares
    issuable by the Corporation pursuant to this clause (a).

    (b)       Tranche II. On
    the earliest practicable date following the Two-Year Anniversary (as defined
    in the Credit Agreement) (the "Tranche II Closing"), the
    Corporation shall issue to the Investors then a party to this Agreement
    Warrants exercisable for a number of Warrant Shares equal to (i) a fraction,
    the numerator of which shall be be the aggregate outstanding principal
    balance of the Term Loans as of the Two-Year Anniversary and the denominator
    of which shall be the aggregate outstanding principal balance of the Term
    Loans as of the date hereof, multiplied by (ii) the product of 1.5% times
    the number of outstanding shares of Common Stock of the Corporation as of
    the Two-Year Anniversary (the "Tranche II Shares"). Each Investor
    a party to this Agreement on the Two-Year Anniversary shall receive that
    number of the Tranche II Shares that is equal to such Investor’s
    Applicable Commitment Percentage multiplied by the aggregate number of
    Tranche II Shares issuable by the Corporation pursuant to this clause (b).

  




2.4       Delivery of the Warrant
Certificates. Within ten (10) days
of any Closing, the Corporation shall issue to any Investor who is entitled to
receive Warrants in accordance with Section 2.3 above, a Warrant
Certificate for Warrants to purchase said number of Warrant Shares, which number
of Warrant Shares is subject to increase and decrease as provided in Article 4
below. In the event a Holder exercises its right to acquire Warrant Shares
granted under any Warrant Certificate, certificates for the shares of Common
Stock so purchased shall be issued in the name of, or as directed by, the Holder
and delivered to Holder, or its transferee (as provided in Article 6 herein),
within a reasonable time and, unless such Warrant Certificate has been fully
exercised or has expired, a new Warrant Certificate representing the shares with
respect to which such Warrant Certificate shall not have been exercised shall
also be issued to Holder, or its transferee, within such time.

 


ARTICLE 3



EXERCISE OF WARRANTS


 

G-4



 

 


3.1       Exercise Price.
The Warrant Certificates shall entitle the Holders thereof, subject to the
provisions of this Agreement, to purchase, as applicable: (a) the Tranche I
Warrant Shares at the Tranche I Exercise Price and (b) the Tranche II Warrant
Shares at the Tranche II Exercise Price.


3.2       Restrictions on Exercise;
Expiration. Subject to the terms and
conditions of this Agreement, on or before the applicable Expiration Date, the
Warrants may be exercised on any Business Day as to all or any portion of the
Warrant Shares. If any of the Warrants are not exercised by 5:00 p.m., New York
City time, on the applicable Expiration Date, this Agreement and unexercised
Warrants and Warrant Certificates shall expire and all rights of the Holders
hereunder and thereunder shall terminate unless otherwise provided herein or
therein.


3.3       Method of Exercise;
Payment of Exercise Price.


  
    (a)       In order to exercise all
    or any of the Warrants, a Holder thereof shall provide written notice in
    substantially the form of Attachment-1 to Exhibit A to the
    Corporation at its address set forth in Section 9.3 hereof specifying
    the number of Warrants being exercised. Such notice shall be accompanied by
    one or more Warrant Certificates representing not less than the number of
    Warrants being exercised, together with payment in full of the applicable
    per share Exercise Price multiplied by the number of Warrant Shares to be
    purchased pursuant to the exercise. The Exercise Price shall be payable, at
    the option of such Holder by wire transfer, certified check, official bank
    check or bank cashier’s check payable to the order of the Corporation. If
    the number of Warrants being exercised is less than the number of Warrants
    represented by the Warrant Certificate(s) tendered in connection with the
    exercise, the Corporation shall issue new Warrant Certificate(s) for the
    unexercised Warrants in accordance with instructions contained in the notice
    of exercise and this Agreement.

    (b)       In lieu of exercising
    this Warrant pursuant to Section 3.2(a) above, Holder may elect to
    receive shares based on the value of this Warrant (or the portion thereof
    being canceled) by surrender of this Warrant at the principal office of the
    Corporation together with notice of such election, in which event the
    Corporation shall issue to Holder a number of shares of Common Stock
    computed using the following formula:

     

    X = Y
    (A-B)

               A

    

  


  
    Where:

     

    
      
        X= the number of shares
        of Common Stock to be issued to Holder;

                Y= the number of
                shares of Common Stock purchasable under this Warrant (at the
                date of such calculation);

                A= the Market
                Value of one share of the Corporation’s Common Stock (at the
                date of such calculation); and

                B= Exercise
                Price as of the date of issuance of the Warrant (adjusted to the
                date of such calculation).

      

    

  




  
    (c)       Upon exercise of any
    Warrant in conformity with the foregoing provisions, the Corporation shall (i)
    transfer promptly to, or upon the written order of, the Holder of such
    Warrant, appropriate evidence of ownership of any Warrant Shares or other
    securities or property (including money) to which it is entitled, registered
    or otherwise placed in such name or names as may be directed in writing by
    the Holder thereof, (ii) deliver such evidence of ownership and any other
    securities or property (including money) to the person or persons entitled
    to receive the same, and (iii) reissue, as the case may be, a Warrant
    Certificate for any unexercised Warrants. A Warrant shall be deemed to have
    been exercised immediately prior to the close of business on the date of the
    surrender for exercise of the Warrant Certificate representing such Warrant
    being exercised and the payment of or surrender of Warrants representing the
    Exercise Price thereof, and, for all purposes of this Agreement, the person
    entitled to receive any Warrant Shares or other securities or property
    deliverable upon such exercise shall, as between such person

  



     

G-5



 

     


  
    and the
    Corporation, be deemed to be the Holder of such Warrant Shares or other
    securities or property of record as of the close of business on such date
    and shall be entitled to receive any Warrant Shares or other securities or
    property (including money) to which such person would have been entitled had
    such person been the record holder of such Warrant Shares or other
    securities or property on such date.

  




3.4       Dividends and
Distributions. For so long as any of
the Warrants remain outstanding and unexercised, the Corporation will, upon the
declaration of a cash dividend upon its Common Stock or other distribution to
the holders of its Common Stock (other than a dividend to holders of its Common
Stock payable in shares of the Corporation’s Common Stock) and at least 10
days prior to the record date, notify the Holders of such declaration, which
notice will contain, at a minimum, the following information: (i) the
anticipated date of the declaration of the dividend or distribution, (ii) the
amount of such dividend or distribution, (iii) the record date of such dividend
or distribution, (iv) the payment date or distribution date of such dividend or
distribution, and (v) the Corporation’s best estimate of the frequency and
amount of cash dividends or other distributions to be paid or made in each of
the succeeding three years.

 


ARTICLE 4



ADJUSTMENTS


The number of Warrant Shares for
which any Warrant is exercisable and the applicable Exercise Price for such
Warrant shall be subject to adjustment from time to time as set forth in this Section
4.


4.1       Upon Stock Dividends,
Subdivisions or Splits. If, at any
time after the date hereof, the number of shares of Common Stock outstanding is
increased by a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock then, the number of shares of
Common Stock purchasable on exercise of a Warrant shall be increased in
proportion to such increase in outstanding shares of Common Stock, and the
applicable Exercise Price per share for such Warrant Shares shall be decreased
in proportion to such increase in outstanding shares of Common Stock.


4.2       Upon Combinations.
If, at any time after the date hereof, the number of shares of Common Stock
outstanding is decreased by any combination of the outstanding shares of Common
Stock into a smaller number of shares of Common Stock, then the number of shares
of Common Stock purchasable on exercise of a Warrant shall be decreased in
proportion to such decrease in outstanding shares of Common Stock, and the
applicable Exercise Price per share for such Warrant Shares shall be increased
in proportion to such decrease in outstanding shares of Common Stock.


4.3       Upon Reclassifications,
Reorganizations, Consolidations or Mergers.
In the event of any capital reorganization of the Corporation, any
reclassification of the Common Stock of the Corporation (other than a change in
par value or from par value to no par value or from no par value to par value or
as a result of a stock dividend or subdivision, split-up or combination of
shares), or any Change of Control transaction, all Warrants issuable hereunder
shall after such reorganization, reclassification, consolidation, or merger be
exercisable for the kind and number of shares of stock or other securities or
property of the Corporation or of the successor corporation resulting from such
consolidation or surviving such merger, if any, to which the holder of the
number of shares of Common Stock deliverable upon exercise of a Warrant issuable
hereunder (immediately prior to the time of such reorganization,
reclassification, consolidation or merger) would have been entitled upon such
reorganization, reclassification, consolidation or merger. The provisions of
this clause shall similarly apply to successive reorganizations,
reclassifications, consolidations, or mergers. Furthermore, the Corporation will
not merge into or consolidate with any other person, or sell or otherwise
transfer its property, assets and business substantially as an entirety to a
successor of the Corporation, unless prior to the consummation of such
reorganization, reclassification, consolidation or merger, the successor
corporation (if other than the Corporation) resulting from such reorganization,
reclassification, consolidation, assumes, by written instrument, the obligation
to deliver to the Holder of a Warrant issuable hereunder, such shares of stock,
securities or assets, which, in accordance with the foregoing provisions, such
Holders shall be entitled to receive upon exercise.


4.4       Deferral in Certain
Circumstances. In any case in which
the provisions of this Section 4 shall require that an adjustment shall become
effective immediately after a record date of an event, the Corporation may defer
until the occurrence of such event issuing to the Holder of any Warrant
exercised after such record date and before the occurrence of such event the
shares of Common Stock issuable upon such exercise by reason of the adjustment
required by such event and issuing to such Holder only the shares of Common
Stock issuable upon such exercise before giving effect to such adjustments;
provided, however, that the Corporation shall deliver to such Holder an
appropriate instrument or due bills evidencing such Holder’s right to receive
such additional shares.

 


ARTICLE 5



RESERVATION AND AUTHORIZATION OF
COMMON SHARES, ETC.


 

G-6



 

 


5.1       Reservation and
Authorization. The Corporation
hereby represents and warrants that it has reserved, and shall at all times
hereafter reserve and keep available, for issuance upon exercise of the Warrants
such number of its duly authorized but unissued shares of Common Stock as will
be sufficient to permit the exercise in full of all outstanding Warrants and
will cause appropriate evidence of ownership of such Warrant Shares or other
securities to be delivered to the Holders of the Warrants upon their request for
delivery of such, and shall take such action as shall be necessary so that all
such shares of Common Stock, shall to the extent such shares are eligible for
listing on a securities exchange, at all times, be duly approved for listing,
subject to official notice of issuance, on each securities exchange, if any, on
which such shares of Common Stock or other securities are then listed.


5.2       Covenant Regarding Common
Stock. The Corporation covenants
that, except as contemplated by the Agreements, all shares of Common Stock will,
upon issuance, be (a) duly authorized, validly issued, fully paid and
nonassessable, (b) free from preemptive and any other similar rights and (c)
free from any taxes, liens, charges or security interest with respect thereto.


ARTICLE 6



WARRANT TRANSFER BOOKS:
RESTRICTIONS ON TRANSFER


 


6.1       Transfer and Exchange.


  
    (a)       The Corporation shall
    keep and maintain a register in which, subject to such reasonable
    regulations as it may prescribe, the Corporation shall provide for the
    registration of the Warrant Certificates on the Corporation’s records and
    transfers or exchanges of the Warrant Certificates as herein provided.

    (b)       Subject to the
    provisions of this Article 6, a Holder may transfer a Warrant
    Certificate and the Warrants represented thereby in whole or in part by
    written notice to the Corporation stating the name of the proposed
    transferee and otherwise complying with the terms of this Agreement. Any
    transferee shall agree in writing to be subject to the terms and conditions
    of this Agreement and the Agreements.

    (c)       Subject to Section
    6.2(b) hereof, when a Warrant Certificate is presented to the
    Corporation with a request to register the transfer of such Warrant
    Certificate, the Corporation shall register the transfer or make the
    exchange as requested if its requirements for such transactions and any
    applicable requirements hereunder are satisfied. To permit registrations of
    transfers and exchanges, the Corporation shall execute and deliver such
    Warrant Certificate in accordance with the provisions hereof. No service
    charge shall be made for any registration of transfer or exchange of the
    Warrants.

  




6.2       Special Transfer
Provisions.


  
    (a)       By its acceptance of the
    Warrants represented by a Warrant Certificate bearing the Transfer Legend,
    each Holder of the Warrants acknowledges the restrictions on transfer of the
    Warrants and Warrant Shares and agrees that it will transfer the Warrants
    and Warrant Shares only in accordance with those restrictions.

    (b)       Upon the transfer,
    exchange or replacement of a Warrant Certificate or certificate representing
    Warrant Shares not bearing the Transfer Legend, the Corporation shall
    deliver a Warrant Certificate or stock certificate that does not bear the
    Transfer Legend. Upon the transfer, exchange or replacement of a Warrant
    Certificate or certificate representing Warrant Shares bearing the Transfer
    Legend, the Corporation shall deliver such Warrant Certificate or stock
    certificate bearing the Transfer Legend, unless such legend may be removed
    from a Warrant Certificate or stock certificate as provided in the next
    sentence. The Transfer Legend may be removed from a Warrant Certificate or
    stock certificate if there is delivered to the Corporation an opinion of
    legal counsel satisfactory to the Corporation to confirm that neither such
    legend nor the restrictions on transfer set forth therein are required to
    ensure that transfers of such security will not violate the registration and
    prospectus delivery requirements of the Securities Act or applicable law;
    provided, however, that the Corporation shall not be required to determine
    the sufficiency of any such evidence.

     

  




6.3       Surrender of a Warrant
Certificate. Any Warrant Certificate
surrendered for registration of transfer, exchange or exercise of the Warrants
represented thereby shall be promptly canceled by the Corporation and shall not
be reissued by the Corporation and, except in case of mutilation or partial
exercise of the Warrants represented by such Warrant Certificate, no Warrant
Certificate shall be issued hereunder in lieu thereof.

 

G-7



 

 


ARTICLE 7



NOTICE TO HOLDERS


 


7.1       Notices of Corporate
Actions.

In case:

(a)       the Corporation shall grant
to the holders of its Capital Stock as a class any rights or warrants to
subscribe for or purchase any shares of Capital Stock of any class; or

(b)       of any reclassification of
the Capital Stock, or of any consolidation, merger or share exchange to which
the Corporation is a party and for which approval of any stockholders of the
Corporation is required, or of the sale or transfer of all or substantially all
of the assets of the Corporation, or of a Change of Control; or

(c)       of the voluntary or
involuntary dissolution, liquidation or winding up of the Corporation; or

(d)       the Corporation or any
subsidiary shall commence a tender offer for all or a portion of the outstanding
shares of Capital Stock (or shall amend any such tender offer to change the
maximum number of shares being sought or the amount or type of consideration
being offered therefor); or

(e)       the Corporation shall take
an action or an event shall occur that would require a Warrant Share and/or
Exercise Price adjustment pursuant to Section 4; or

(f)       the Board of Directors shall
determine the Market Price with respect to any Closing, any Referral Date shall
occur or the Market Price shall be redetermined in accordance with the
definition thereof;

then the Corporation shall cause
to be mailed to each Investor at its last address as such address appears in the
stock register, (i) in the case of any action covered by clauses (a) through (d)
above at least 20 days prior to the record date for determining holders of the
Common Stock for purposes of such action, and (ii) in the case of any other such
action, as soon as practicable, a notice stating (1) the date on which a record
is to be taken for the purpose of such dividend, distribution or granting of
rights or warrants, or, if a record is not to be taken, the date as of which the
holders of the Common Stock of record who will be entitled to such dividend,
distribution, rights or warrants are to be determined, (2) the date on which
such reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of the Common Stock of record shall
be entitled to exchange their shares of the Common Stock for securities, cash or
other property deliverable upon such reclassification, consolidation, merger,
share exchange, sale, transfer, dissolution, liquidation or winding up, or (3)
the date on which such tender offer commenced, the date on which such tender
offer is scheduled to expire unless extended, the consideration offered and the
other material terms thereof (or the material terms of the amendment thereto).
Such notice shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action on the applicable
Exercise Price, the Warrant Shares issuable hereunder and the kind or class of
shares or other securities or property which shall be deliverable or purchasable
upon the occurrence of such action or deliverable upon exercise of the Warrants.
Neither the failure to give any such notice nor any defect therein shall affect
the legality or validity of any action described in clauses (a) through (f) of
this Section 7.1.


7.2       Taking of Record.
In the case of all dividends or other distributions by the Corporation to the
holders of its Common Stock with respect to which any provision of any Section
hereof refers to the taking of a record of such holders, the Corporation will in
each such case take such a record and will take such record as of the close of
business on a Business Day.


7.3       Closing of Transfer Books.
The Corporation shall not at any time, except upon dissolution, liquidation or
winding up of the Corporation, close its stock transfer books or Warrant
transfer books so as to result in preventing or delaying the exercise or
transfer of any Warrant.

 

G-8



 

 


ARTICLE 8



REGISTRATION


 


8.1       Corporation Covenants.

(a)       Registrable Securities.
As used herein, "Registrable Securities" shall mean (i) the
Warrant Shares and (ii) any Common Stock issued or issuable at any time or from
time to time in respect of the Warrant Shares upon a conversion, stock split,
stock dividend, recapitalization or other similar event involving the
Corporation; provided, however, that no shares shall be included in any
registration under this Agreement unless such shares shall have been first
converted to Common Stock; and provided further that shares shall cease to be
Registrable Securities at such time as they become eligible for sale pursuant to
Rule 144 under the Securities Act, and provided further that shares shall cease
to be Registrable Securities at such time as they are sold by a person in a
transaction in which his rights under this Agreement are not properly assigned.

(b)       Registration Upon Request.
At any time after the date hereof, the Holder or Holders of Registrable
Securities constituting at least a majority of the total number of shares of
Registrable Securities then outstanding or issuable upon exercise of then
outstanding Warrants may request the Corporation to register under the
Securities Act, for sale in accordance with the method of disposition specified
in such notice, all or any portion of the Registrable Securities held by such
requesting Holder or Holders; provided, however, that the aggregate offering
price of the shares of Registrable Securities to be registered (if they
constitute less than all of the Registrable Securities held by the requesting
Holder or Holders) must be reasonably likely to equal or exceed $500,000; and
provided further, that the Corporation shall have no obligation to (i) effect
more than two (2) registration under this Section 8.1(b) during any
period of twelve (12) consecutive months; or (ii) to effect any registration
under this Section 8.1(b) within 180 days after the effective date of any
registered offering of the Corporation’s securities to the general public in
which such Holder or Holders shall have been able to register all Registrable
Securities as to which registration shall have been requested pursuant to Section
8.1(c).

(c)       Incidental Registration.
If the Corporation at any time proposes to register any of its Common Stock
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Form S-8 or S-4 or another form not available for
registering the Registrable Securities for sale to the public), each such time
it will give written notice to the Holders of its intention to do so. Upon the
written request of any Holder, given within ten (10) days after receipt of any
such notice, to register any of such Holder’s Registrable Securities (which
request must state the intended method of disposition thereof), the Corporation
will use its commercially reasonable efforts (as set forth in Section 8.1(d))
to cause the Registrable Securities as to which registration has been so
requested to be included in the securities to be covered by the registration
statement proposed to be filed by the Corporation, all to the extent requisite
to permit the sale or other disposition by such Holder (in accordance with its
written request) of such Registrable Securities so registered. If any
registration pursuant to this Section 8.1(c) is, in whole or in part, an
underwritten public offering of Common Stock, any request by a Holder pursuant
to this Section 8.1(c) to register Registrable Securities must specify
that such Registrable Securities are to be included in the underwriting on the
same terms and conditions as the shares of Common Stock otherwise being sold
through underwriters under such registration. Notwithstanding anything to the
contrary contained in this Section 8.1(c), if there is a firm commitment
underwritten offering of securities of the Corporation pursuant to a
registration statement covering Registrable Securities and such Holder does not
elect to sell its Registrable Securities to the underwriters of securities in
connection with such offering, such Holder will refrain from selling such
Registrable Securities during the period of distribution of the Corporation’s
securities by such underwriters and the period in which the underwriting
syndicate participates in the after market; provided, however, that the Holder,
in any event, shall be entitled to sell its Registrable Securities commencing on
the 180th day after the effective date of such registration statement.

(d)       Obligations of the
Corporation. If and whenever the Corporation is required by the provisions
of Section 8.1(b) or (c) hereof to use its commercially reasonable
efforts to effect the registration of any of Registrable Securities under the
Securities Act, the Corporation will, as expeditiously as possible:

(i)       prepare and file with the
Securities and Exchange Commission (the "SEC") a registration
statement on the appropriate form and in compliance in all material respects
with the Securities Act (the "Registration Statement") covering such
Registrable Securities, and use its reasonable best efforts to have the
Registration Statement declared effective as promptly as practicable;

(ii)       prepare and file with the
SEC such amendments and supplements to the Registration Statement as may be
necessary to keep the Registration Statement effective (including, without
limitation, any amendments or supplements which may be required as a result of
any changes in any Holder’s plan of distribution) until the earlier of (1)
such time as all the Registrable Securities have been sold by the Holders or (2)
such time as the Registrable Securities will no longer be

 

G-9



 

 

required to be
registered for the resale thereof by any Holder by reason of Rule 144 of the SEC
under the Securities Act or any other rule of similar effect; provided, however,
that the Corporation in good faith, may delay the filing of any amendment or
supplement to the Registration Statement for a reasonable period of time, not to
exceed 90 days, in order to permit the Corporation (A) to effect disclosure or
disposition or consummation of any transaction requiring confidential treatment
which is being actively pursued at such time and which would require disclosure
in the Registration Statement or (B) to negotiate, effect or complete any
transaction which the Corporation reasonably believes might be jeopardized,
delayed or made more costly to the Corporation by disclosure in the Registration
Statement;

(iii)       advise the Holders,
promptly after it shall receive notice or obtain knowledge thereof, of the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Registrable Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceeding for any such purpose if such stop
order, suspension or proceeding would prohibit the resale of the Registrable
Securities by any Holder; and it will promptly use its reasonable best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such a
stop order should be issued;

(iv)       use its reasonable best
efforts to furnish to the Holders with respect to the Registrable Securities
registered on the Registration Statement (and to each underwriter, if any, of
such Registrable Securities) such number of copies of the prospectus included in
the Registration Statement (the "Prospectus") in conformity with the
requirements of the Securities Act and such other documents as the Holders may
reasonably request, in order to facilitate the resale of all or any of the
Registrable Securities by the Holders, it being understood and agreed that the
Holders will comply with the provisions of the Securities Act and of such other
securities or state securities laws ("Blue Sky") as may be applicable
to selling stockholders in connection with any use of the Prospectus;

(v)       within the time during which
a Prospectus is required to be delivered under the Securities Act, comply as far
as it is able with all requirements imposed upon it by the Securities Act, as
now and hereafter amended, and by the rules and regulations, as from time to
time in force, so far as necessary to permit the continuance of sales of the
Registrable Securities as contemplated by the provisions hereof and the
Prospectus. If during such period any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend the Registration
Statement or supplement the Prospectus to comply with the Securities Act, the
Corporation will promptly notify the Holders and will, subject to the proviso in
clause (ii) above, amend the Registration Statement or supplement the Prospectus
so as to correct such statement or omission or effect such compliance and will
immediately notify the Holders of the filing and effectiveness of each amendment
to the Registration Statement and the filing of each supplement to the
Prospectus;

(vi)       use its reasonable best
efforts to register and qualify the Registrable Securities under the securities
laws of such jurisdictions as any of the Holders may reasonably request and to
continue such qualifications in effect so long as the Registration Statement is
kept effective pursuant to this Section 8.1, except that the Corporation shall
not be required in connection therewith to qualify as a foreign corporation or
to execute a general consent to service of process in any such jurisdiction;

(vii)       if the Registrable
Securities are to be sold in an underwritten offering, the Corporation will
furnish, at the request of the selling Holder(s), on the date that such
Registrable Securities are delivered to the underwriters for sale in an
underwritten public offering (1) an opinion, dated as of such date, of counsel
for the Corporation for the purposes of such registration, addressed to the
underwriters, in a customary form and covering maters of the type customarily
covered in opinions of issuer’s counsel delivered to the underwriters in
underwritten public offerings, and such other legal matters as such underwriter
may reasonably request, and (2) a "comfort" letter, dated as of such
date, signed by the independent public accountants of the Corporation who have
certified the Corporation’s financial statements included in such registration
statement, addressed to the underwriters, in a customary form and covering
matters of the type customarily covered in accountants’ "comfort"
letters delivered to the underwriters in underwritten public offerings and such
other financial information (including information as to the period ending not
more than five (5) business days prior to the date of such letter) as such
underwriter may reasonably request; and, with each Holder, enter into customary
agreements (including an underwriting agreement in customary form) and take such
other actins as are reasonably required in order to expedite or facilitate the
disposition of Registrable Securities in an underwritten offering; and

 

 

G-10



 

 

(viii)       bear all expenses in
connection with the procedures in this Section 8.1 (including without
limitation all federal and state registration, qualification and filing fees,
printing expenses, fees and disbursements of counsel for the Corporation, blue
sky fees and expenses and the expense of any special audit incident to or
required by any such registration), other than underwriting discounts, selling
commissions, and fees and the expenses, if any, of counsel or other advisers to
any of the Holders, which shall be borne by the Holders.

(e)       The Corporation shall be
entitled to require that the parties refrain from effecting any public sales or
distributions of the Registrable Securities pursuant to a Registration Statement
that has been declared effective by the SEC or otherwise, if the board of
directors of the Corporation reasonably determines that such, public sales, or
distributions would interfere in any material respect with any transaction
involving the Corporation that the board of directors reasonably determines to
be material to the Corporation. The board of directors shall, as promptly as
practicable, give the holders of the Registrable Securities written notice of
any such development. In the event of a request by the board of directors of the
Corporation that the holders of Registrable Securities refrain from effecting
any public sales or distributions of the Registrable Securities, the Corporation
shall be required to lift such restrictions regarding effecting public sales or
distributions of the Registrable Securities as soon as reasonably practicable
after the board of directors shall reasonably determine public sales or
distributions by the holders of the Registrable Securities shall not interfere
with such transaction, provided, that in no event shall any requirement
that the holders of Registrable Securities refrain from effecting public sales
or distributions in the Registrable Securities extend for more than 180 days.

(f)       If any Registration
Statement relates to an underwritten public offering, the right of any Holder to
participate in such registration pursuant shall be conditioned upon such Holder
participating in such reasonable underwriting arrangements as the Corporation
shall make regarding the offering, and the inclusion of Registrable Securities
in the underwriting shall be limited to the extent provided herein. The
participating Holders and all other shareholders proposing to distribute their
securities through such underwriting shall (together with the Corporation and
the other shareholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by the Corporation. Notwithstanding
any other provision of this Agreement, if the managing underwriter concludes in
its reasonable judgment that the number of shares to be registered for selling
shareholders (including the Holders) would materially adversely effect such
offering, the number of Registrable Securities to be registered, together with
the number of shares of Common Stock or other securities held by other
shareholders proposed to be registered in such offering, shall be reduced on a
pro rata basis based on the number of Registrable Securities proposed to be sold
by each Holder as compared to the number of shares proposed to be sold by all
shareholders. If any Holder disapproves of the terms of any such underwriting,
it may elect to withdraw therefrom by written notice to the Corporation and the
managing underwriter, delivered not less than 10 days before the effective date.
The Registrable Securities excluded by the managing underwriter or withdrawn
from such underwriting shall be withdrawn from such registration, and shall not
be transferred in a public distribution prior to 180 days after the effective
date of the registration statement relating thereto, or such other shorter
period of time as the underwriters may require.

(g)       The Corporation shall have
the right to terminate or withdraw any Registration Statement initiated by it
under Section 8.1(c) of this Agreement prior to the effectiveness of such
Registration Statement whether or not any Holder has elected to include
securities in such registration.


8.2       Holder Covenants.

(a)       Each Holder shall furnish
the Corporation such information regarding such Holder and the distribution of
such Registrable Securities as the Corporation may from time to time reasonably
request in writing.

(b)       Each Holder of the
Registrable Securities agrees by acquisition of such Registrable Securities to
give at least three (3) business hours prior written notice to the Corporation
of any proposed sale of Registrable Securities pursuant to an effective
Registration Statement, specifying the proposed date of such sale, and not to
make such sale (1) unless such three (3) business hours elapse without response
from the Corporation, or (2) in the event the Corporation responds by stating
that an amendment to such Registration Statement or supplement to the Prospectus
must be filed in accordance with Section 8.1(d)(v), until the Corporation
notifies the Holder that the Registration Statement has been amended or the
Prospectus supplemented as required. Each Holder further agrees that if the
Registrable Securities are not sold within 24 hours of the time such notice is
delivered to the Corporation, it will not sell any Registrable Securities
without again complying with the notice provisions of this Section 8.2(b).
For purposes hereof, "business hours" means the hours of 9:00 a.m. to
6:00 p.m. on any day when the New York Stock Exchange is open for trading.

 

G-11



 

 

(c)       Each Holder of the
Registrable Securities agrees by acquisition of such Registrable Securities that
upon receipt of any notice from the Corporation of the happening of any event of
the kind described in the second sentence of subdivision (v) of Section
8.1(d) or pursuant to Section 8.1(e), such Holder will forthwith
discontinue such Holder’s disposition of Registrable Securities pursuant to
the Registration Statement relating to such Registrable Securities until such
Holder’s receipt of the copies of the supplemented or amended prospectus
contemplated by subdivision (v) of Section 8.1(a) or of notice from the
Corporation pursuant to Section 8.1(e), and, if so directed by the
Corporation, will deliver to the Corporation (at the Corporation’s expense)
all copies, other than permanent file copies, then in such Holder’s possession
of the Prospectus relating to such Registrable Securities at the time of receipt
of such notice.


8.3       Indemnification.

(a)       The Corporation will
indemnify each Holder, each of its officers, directors and constituent partners,
legal counsel for the Holder, and each person controlling such Holder, with
respect to which registration, qualification or compliance of Registrable
Securities has been effected pursuant to this Agreement, and each underwriter,
if any, and each of its officers, directors, constituent partners, legal counsel
for such underwriter and each person who controls any underwriter against all
claims, losses, damages or liabilities (or actions in respect thereof) to the
extent such claims, losses, damages or liabilities arise out of or are based
upon any untrue statement (or alleged untrue statement) of a material fact
contained in any Prospectus or other document (including any related
Registration Statement) incident to any such registration, qualification or
compliance, or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any violation by the Corporation of any rule or regulation
promulgated under the Securities Act applicable to the Corporation and relating
to action or inaction required of the Corporation in connection with any such
registration, qualification or compliance; and the Corporation will reimburse
each such Holder, each such underwriter and each person who controls any such
Holder or underwriter, for any legal and any other expenses reasonably incurred
in connection with investigating or defending any such claim, loss, damage,
liability or action; provided, however, that the indemnity contained in this Section
8.3(a) shall not apply to amounts paid in settlement of any claim, loss,
damage, liability or action if settlement is effected without the consent of the
Corporation (which consent shall not unreasonably be withheld); and provided,
further, that the Corporation will not be liable in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of or is
based upon any untrue statement or omission based upon written information
furnished to the Corporation by such Holder, underwriter or controlling person
and stated to be for use in connection with the offering of Registrable
Securities. Notwithstanding the above, the foregoing indemnity agreement is
subject to the condition that, insofar as it relates to any such untrue
statement, alleged untrue statement, omission or alleged omission made in a
preliminary prospectus on file with the SEC at the time the Registration
Statement becomes effective or the amended prospectus filed with the SEC
pursuant to Rule 424(b) (the "Final Prospectus"), such indemnity
agreement shall not inure to the benefit of any underwriter or any Holder, if
there is no underwriter, if a copy of the Final Prospectus was not furnished to
the person asserting the loss, liability, claim or damage at or prior to the
time such action is required by the Securities Act.

(b)       Each Holder will indemnify
the Corporation, each of its directors and officers, each legal counsel and
independent accountant of the Corporation, each underwriter, if any, of the
Corporation’s securities covered by such a Registration Statement, each person
who controls the Corporation or such underwriter within the meaning of the
Securities Act, and each other such Holder, each of its officers, directors and
constituent partners and each person controlling such other Holder, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based upon any untrue statement (or alleged untrue statement) of a
material fact contained in any such Registration Statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by such Holder of any rule
or regulation promulgated under the Securities Act applicable to such Holder and
relating to action or inaction required of such Holder in connection with any
such registration, qualification or compliance, and will reimburse the
Corporation, such Holder, such directors, officers, partners, persons, law and
accounting firms, underwriters or control persons for any legal and any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such Registration Statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Corporation by such Holder
and stated to be specifically for use in connection with the offering of
Registrable Securities; provided, however, that each Holder’s liability under
this Section 8.3(b) shall not exceed such Holder’s proceeds from the
offering of Registrable Securities made in connection with such registration.

(c)       Promptly after receipt by an
indemnified party under this Section 8.3 of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party under this

 

G-12



 

 

Section 8.3(c), notify the
indemnifying party in writing of the commencement thereof and generally
summarize such action. The indemnifying party shall have the right to
participate in and to assume the defense of such claim; provided, however, that
the indemnifying party shall be entitled to select counsel for the defense of
such claim with the approval of any parties entitled to indemnification, which
approval shall not be unreasonably withheld; provided further, however, that if
either party reasonably determines that there may be a conflict between the
position of the Corporation and the Holders in conducting the defense of such
action, suit or proceeding by reason of recognized claims for indemnity under
this Section 8.3, then counsel for such party shall be entitled to
conduct the defense to the extent reasonably determined by such counsel to be
necessary to protect the interest of such party, and the reasonable fees and
expenses of such counsel shall be paid by the indemnifying party.

(d)       If the indemnification
provided for in this Section 8.3 from an indemnifying party is
unavailable to an indemnified party hereunder in respect to any losses, claims,
damages, liabilities or expenses referred to herein, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified party in
connection with the statements or omissions which result in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or indemnified party and the parties’ relative intent,
knowledge, access to information supplied by such indemnifying party or
indemnified party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action, suit, proceeding or
claim.

 

 


ARTICLE 9

MISCELLANEOUS


 

9.1       Loss or Mutilation.
Upon receipt by the Corporation from any Holder of evidence reasonably
satisfactory to the Corporation of the ownership of and the loss, theft,
destruction or mutilation of a Warrant Certificate and an indemnity reasonably
satisfactory to it (it being understood that the written indemnification
agreement of Holder shall be a sufficient indemnity) and, in case of mutilation,
upon surrender and cancellation hereof, the Corporation will execute and deliver
in lieu hereof a new Warrant Certificate of like tenor to such Holder; provided,
however, that, in the case of mutilation, no indemnity shall be required
if such Warrant in identifiable form is surrendered to the Corporation for
cancellation.

9.2       Payment of Taxes.
The Corporation shall pay any taxes and other governmental charges that may be
imposed under the laws of the United States of America or any political
subdivision or taxing authority thereof or therein in respect of the issue or
delivery of Warrant Shares or of other securities or property deliverable upon
exercise of the Warrants (other than income taxes imposed on the Holders). The
Corporation shall not be required, however, to pay any tax or other charge
imposed in connection with any transfer involved in the issue of any certificate
for Warrant Shares or other securities or property issuable upon the exercise of
the Warrants or payment of cash to any person other than the Holder of a Warrant
Certificate surrendered upon exercise of the Warrants, and in case of such
transfer or payment, the Corporation shall not be required to issue any stock
certificate or pay any cash until such tax or charge has been paid or it has
been established to the Corporation’s satisfaction that no such tax or charge
is due.

9.3       Notices. Any
notice, demand or delivery authorized by this Agreement shall be in writing and
shall be delivered (a) by hand or overnight courier service or (b) mailed or
sent by electronic transmission or transmission by telecopier or confirmed
facsimile, in each case properly addressed to the party to be notified at the
addresses set forth in the Credit Agreement or such other address or telecopy
number as shall have been furnished to the party giving or making such notice,
demand or delivery. Any notice that is sent in a manner provided herein shall
have been duly given when sent.

9.4       Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF GEORGIA WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES
THEREOF.

 

G-13



 

 

9.5       Assignment; Successors.
Subject to Section 6.2(a) hereof, this Agreement may be assigned by the
Investors to any Affiliate at any time upon written notice. This Agreement shall
be binding upon and inure to the benefit of the Corporation and the Investors
and their respective successors and assigns, and the Holders from time to time
of the Warrants. Nothing in this Agreement is intended or shall be construed to
confer upon any person, other than the Corporation, and the Investors, any
right, remedy or claim under or by reason of this Agreement or any part hereof.
The parties acknowledge, that upon the assignment of an Investor’s rights
under the Credit Agreement as provided in Section 11.1 of the Credit
Agreement, the assignee of said rights shall become a party hereto as an
"Investor", with all rights, obligations and benefits of an Investor
hereunder; provided, however, that any Investor who receives a Warrant
Certificate hereunder prior to any such assignment, shall after such assignment,
continue to have all rights under this Agreement with respect to said Warrant
Certificate and the Warrant Shares issuable thereunder.

9.6       Counterparts.
This Agreement may be executed manually or by facsimile in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.

9.7       Amendments.
Any provision of this Agreement or the Warrant Certificates may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Corporation and the Investors holding a majority in interest of the issued
or issuable Warrant Shares; provided, however, if any amendment adversely
affects any Investor materially differently than it affects all other Investors
hereunder, said amendment shall not be effective against such Investor without
the written consent of such Investor.

9.8       Headings. The
descriptive headings of the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.

9.9       Third Party
Beneficiaries. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Corporation, on the one hand, and the
Investors, on the other hand, and each such Holder shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights.

9.10      Severability.
In the event that any one or more of the provisions contained herein, or the
application thereof in any circumstances is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected thereby, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.

9.11      No Inconsistent
Agreements. The Corporation has not, as of the date hereof, entered
into, nor shall it, on or after the date hereof, enter into, any agreement that
is inconsistent with the rights granted to the Investors herein or that
otherwise conflicts with the provisions hereof.

9.12      Limitation on Holders’
Rights. Prior to the exercise of any Warrant, the Holder thereof shall
not be entitled to any rights of a shareholder, including, without limitation,
the right to vote or receive dividends or other distributions, or any notice of
any proceedings of the Company except as expressly provided in this Agreement.

 

G-14



 

 


IN WITNESS WHEREOF,
the parties have caused this Agreement to be duly executed, as of the date first
above written

 

		
MILLER INDUSTRIES, INC.


 

By:_________________________________

Name:______________________________

Title:_______________________________

    



 

 

G-15



 

 

 

                        
                        		
                        BANK OF
                        AMERICA, N.A.

                        
                         

                    
                    By:_________________________________

                    Name: John P. McDuffie

                    Title:
                        Vice President

                        
                         

                        WACHOVIA
                        BANK, N.A.

                         

                    
                    By:__________________________________

                    Name: William W. Teegarden

                    Title:
                    Senior Vice President

                     

                        
                        AMSOUTH
                        BANK

                         

                    
                    By:___________________________________

                     Name: M.
Rex Hamilton

                     Title:
Commercial Banking Officer

                     

                            
                        
                        SUNTRUST
                        BANK

                         

                    
                            By:________________________________________

                            Name: Samuel Ballesteros

                            Title: Director

                            



 


G-16



 

 

 


EXHIBIT A

FORM OF WARRANT CERTIFICATE

 

THIS WARRANT HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND MAY NOT BE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SUCH ACT.

THE SECURITIES EVIDENCED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE ACT OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED
OR HYPOTHECATED UNLESS REGISTERED OR QUALIFIED UNDER THE ACT AND APPLICABLE
SECURITIES LAWS OR OTHER JURISDICTIONS, OR THE CORPORATION RECEIVES AN OPINION
OF COUNSEL SATISFACTORY TO IT THAT SUCH REGISTRATION AND QUALIFICATION IS NOT
REQUIRED UNDER APPLICABLE LAW.


 

	
No. ______

    	
 Warrants to purchase
an aggregate

    
	
 

    	
of __________ Shares of Common
Stock

    


 

WARRANT TO PURCHASE COMMON STOCK

 

This certifies that, for value
received, _______________________ (the "Holder") or its assigns, is
entitled to purchase [__] shares of common stock ("Common Stock") (as
adjusted for any stock splits, stock dividends, combinations, recapitalizations
and similar events), of Miller Industries, Inc. (the "Corporation").
This Warrant entitles the holder thereof (the "Holder") to purchase
from the Corporation the shares of Common Stock issuable hereunder at the
purchase price (the "Exercise Price") of [$__] per share subject to
the terms and conditions hereof and of that certain Warrant Agreement, dated
_____ ___, 2001, among the Corporation and the Investors thereto (the
"Agreement"). All capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Agreement. The number of shares
purchasable upon exercise of this Warrant Certificate and the Exercise Price per
share are subject to adjustment from time to time as set forth in the Agreement.
In order to exercise this Warrant Certificate, the registered Holder hereof must
surrender this Warrant Certificate and pay the appropriate Exercise Price at the
office of Corporation as set forth in the Agreement or to its successor.

This Warrant Certificate is one
of a duly authorized issue of warrants evidencing the right to purchase shares
of Common Stock of the Corporation and is issued under and in accordance with
the Agreement, and is subject to the terms and provisions contained therein, to
all of which terms and provisions the Holder of this Warrant Certificate
consents by acceptance hereof. The Agreement is hereby incorporated herein by
reference and made a part hereof. Reference is hereby made to the Agreement for
a full description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Corporation and the Holder of the Warrants. The
summary of the terms of the Agreement contained in this Warrant Certificate is
qualified in its entirety by express reference to the Agreement.

Copies of the Agreement are
on
file at the office of the Corporation and may be obtained by writing to the
Corporation requesting the same.

All shares of Common Stock
issuable by the Corporation upon the exercise of this Warrant Certificate shall
be validly issued, fully paid and nonassessable.

Subject to the requirements set
forth in the Agreement and the restrictions on transfer set forth above, this
Warrant Certificate and all rights hereunder shall be transferable by the
registered Holder hereof on the register of the Corporation maintained by the
Corporation for such purpose at its office upon surrender of this Warrant
Certificate duly endorsed, or accompanied by a written instrument of transfer in
form satisfactory to the Corporation duly executed, by the registered Holder
hereof or such Holder’s attorney duly authorized in writing and upon payment
of any necessary transfer tax or other governmental charge imposed upon such
transfer. Upon any partial transfer the Corporation will issue and deliver to
such Holder a new Warrant Certificate with respect to any portion not so
transferred.

This Warrant Certificate shall
be void and all exercise rights evidenced hereby shall cease on [_________ __,
____].

 

G-17



 

 

This Warrant Certificate and the
Agreement are subject to amendment as provided in the Agreement.

 

Dated: ________ ___, _____.

 

 

		
MILLER INDUSTRIES, INC.


 

    By:_______________________________________

    Name:____________________________________

    Title:_____________________________________

    



 

 

 

G-18

  

 

 

 


ATTACHMENT-1

 

Notice of Intention to Exercise
Warrant for Cash


 

The undersigned holder of the
attached Warrant Certificate hereby exercises the right to exchange the attached
Warrant Certificate for the number of shares of Common Stock of Miller
Industries, Inc. shown below in accordance with the terms thereof and directs
that (i) such shares be issued and delivered to the undersigned as provided by
the terms of the attached Warrant Certificate, and (ii) a certificate
representing the number of shares covered by the attached Warrant Certificate
which shall thereafter remain unexercised, if any, also be delivered to the
undersigned. This notice is accompanied by the aggregate purchase price shown
below.

 

1.          Number of shares as to which
exercised: ________________________________

 

AND

 

2.          Aggregate Purchase Price:
___________________________________________

 

 

  
    
      
        
          
            
              
_________________________________________

(Signature of Holder)

              

            

          

        

      

    

  

 

 

 

G-19