Exchange Agreement Between Miller Industries, Inc. and Harbourside Investments, LLLP Dated January 14, 2004

Summary

Miller Industries, Inc. and Harbourside Investments, LLLP entered into an agreement where Harbourside will exchange a portion of its subordinated debt and warrants in Miller Industries for shares of Miller's common stock. The agreement sets specific terms for how much stock Harbourside will receive based on the average market price, and also provides for the issuance of a new subordinated note for the remaining debt. The transaction was reviewed and approved by a special committee of Miller's board to ensure fairness to shareholders.

EX-10.8 10 exchangeharbour.txt EXCHANGE AGREEMENT BY AND BETWEEN MILLER AND HARBOUR Exhibit 10.8 EXCHANGE AGREEMENT BY AND BETWEEN MILLER INDUSTRIES, INC., AND HARBOURSIDE INVESTMENTS, LLLP Dated as of January 14, 2004 EXCHANGE AGREEMENT THIS EXCHANGE AGREEMENT (this "AGREEMENT") is entered into as of January 14, 2004, by and between MILLER INDUSTRIES, INC., a Tennessee corporation ("MILLER INDUSTRIES"), and HARBOURSIDE INVESTMENTS, LLLP, a Georgia limited liability limited partnership ("HARBOURSIDE"). Capitalized terms used herein but not otherwise located in the text of this Agreement are defined in SECTION 10.12. W I T N E S S E T H: WHEREAS, Harbourside owns $6,133,166.73 principal amount of the outstanding subordinated debt of Miller Industries (the "SUBORDINATED DEBT") under that certain Amended and Restated Credit Agreement, dated July 23, 2001, as amended (the "NOTE CREDIT AGREEMENT"), by and among Miller Industries, Miller Industries Towing Equipment, Inc., a Delaware corporation, and Bank of America, N.A., in its capacity as a Lender, and other financial institutions which may be Lenders from time to time, which Subordinated Debt is evidenced by certain promissory notes issued by Miller Industries (the "NOTES"); WHEREAS, in relation to the Subordinated Debt, Harbourside also owns 82,384 of the warrants issued by Miller Industries (the "WARRANTS") pursuant to that certain Warrant Agreement, dated July 23, 2001, by and among Miller Industries, Bank of America, N.A., SunTrust Bank, Wachovia Bank, N.A. and AmSouth Bank (the "WARRANT AGREEMENT"); WHEREAS, Harbourside has agreed that as of January 14, 2004, on the terms and subject to the conditions set forth in this Agreement, it will (i) exchange the portion of the Subordinated Debt that is over and above $4,293,216.71, representing 70% of the aggregate principal amount of the Subordinated Debt (the "BASE AMOUNT"), for shares of common stock of Miller Industries, par value $.01 per share ("MILLER COMMON STOCK") (the "EXCHANGE"), and (ii) convert the Warrants, on the terms and conditions set forth herein (the "WARRANT CONVERSION") for shares of Miller Common Stock; WHEREAS, Harbourside has also agreed that as of January 14, 2004, it will exchange its Notes (the "NOTE AMENDMENT") for a new Tranche B Subordinated Secured Note in a principal amount equal to the Base Amount of the Notes and in the form attached hereto in EXHIBIT A (the TRANCHE B NOTE"); WHEREAS, because some of the partners in Harbourside are "insiders" of Miller Industries (the "INSIDERS") within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, the Board of Directors of Miller Industries (the "Board") has established a special committee (the "SPECIAL COMMITTEE") of three non-employee directors to consider and evaluate the fairness to Miller Industries and its shareholders of the Exchange; WHEREAS, the Special Committee has carefully reviewed and negotiated the terms of this Agreement and has unanimously recommended that the Board approve and authorize this Agreement and the transactions contemplated hereby, which recommendation was based in part upon the opinion of Morgan Keegan & Company, Inc. (the "FINANCIAL ADVISOR"), financial advisor to the Special Committee, that, as of the date of such opinion, the terms of the Exchange are fair, from a financial point of view, to the shareholders of Miller Industries other than the Insiders; WHEREAS, the Board has approved this Agreement and the transactions contemplated hereby (with the board members that are partners of Harbourside abstaining from such vote), which approval was based on the recommendation of the Special Committee; WHEREAS, with respect to the Exchange, the Board (with the board members that are partners of Harbourside abstaining from such vote) has determined that the Exchange is fair to and in the best interests of Miller Industries and its shareholders and has unanimously resolved to recommend that the Exchange be approved by the shareholders of Miller Industries at a special meeting as provided herein; NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements herein contained and other good and valuable consideration, the parties hereby agree as follows: SECTION 1. EXCHANGE OF PORTION OF SUBORDINATED DEBT FOR SHARES OF MILLER COMMON STOCK AND ISSUANCE OF TRANCHE B NOTE. Upon the terms and subject to the conditions set forth in this Agreement, on the Closing Date (as hereinafter defined) or as soon thereafter as is possible following the Miller Shareholder Approval (as hereinafter defined), (a) Miller Industries shall deliver irrevocable instructions to SunTrust Bank, as transfer agent of the Miller Common Stock (the "TRANSFER AGENT"), to issue and deliver to Harbourside a number of shares of Miller Common Stock equal to the Note Stock Amount and the Warrant Stock Amount (each as hereinafter defined); and (b) Upon receipt of evidence reasonably satisfactory to it of the issuance of the instructions referred to in SECTION 1(B), Harbourside shall deliver to Miller Industries all of the Notes owned by it (subject to SECTION 4.3) and Miller Industries shall deliver to Harbourside a Tranche B Note in the principal amount equal to the Base Amount. SECTION 2. NOTE STOCK AMOUNT. 2.1 NOTE STOCK AMOUNT. The "NOTE STOCK AMOUNT" shall be determined as follows: (a) If the Exchange Price (as defined below) is not greater than $7.00 (the "CAP") and not less than $5.00 (the "Floor"), the Note Stock Amount shall be equal to the sum of the Aggregate Conversion Amount (as defined below) divided by the Exchange Price. The "EXCHANGE PRICE" shall mean the average closing price per share of Miller Common Stock on the New York Stock Exchange ("NYSE") for each trading day in the calendar fourth quarter of 2003. The "AGGREGATE CONVERSION AMOUNT" means the sum of the total obligations due under the Subordinated Debt, being principal, accrued interest and accrued commitment fees (together with accrued interest thereon), in each case to and including the Closing Date, MINUS the Base Amount. The parties agree that, as of the date of this Agreement, the Aggregate Conversion 2 Amount would be $3,158,761.90, consisting of $6,133,166.73 of principal, $450,325.67 of accrued interest, and $813,857.61 of accrued fees and $54,628.61 interest thereon, MINUS the Base Amount of $4,293,216.71. The parties agree that the Exchange Price is $5.75640625. (b) If the Exchange Price is less than $5.00, the Note Stock Amount shall be equal to the sum of the Aggregate Conversion Amount divided by $5.00. (c) If the Exchange Price is greater than $7.00, the Note Stock Amount shall be equal to the sum of the Aggregate Conversion Amount divided by $7.00. 2.2 CALCULATION EXAMPLES. The following represent illustrative examples of the calculations set forth in SECTION 2.1 based on a hypothetical Aggregate Conversion Amount of $3,158,761.90 (assuming $7,451,978.61 in total outstanding obligations under the Subordinated Debt, MINUS the Base Amount of $4,293,216.71): EXAMPLE OF SECTION 2.1(A): IF THE EXCHANGE PRICE EQUALS $5.50, THEN THE NOTE STOCK AMOUNT WOULD EQUAL 574,320 SHARES OF MILLER COMMON STOCK ($3,158,761.90 DIVIDED BY $5.50). EXAMPLE OF SECTION 2.1(B): IF THE EXCHANGE PRICE EQUALS $4.00, THEN THE NOTE STOCK AMOUNT WOULD EQUAL 631,752 SHARES OF MILLER COMMON STOCK ($3,158,761.90 DIVIDED BY THE FLOOR PRICE OF $5.00). EXAMPLE OF SECTION 2.1(C): IF THE EXCHANGE PRICE EQUALS $8.00, THEN THE NOTE STOCK AMOUNT WOULD EQUAL 451,251 SHARES OF MILLER COMMON STOCK ($3,158,761.90 DIVIDED BY THE CAP PRICE OF $7.00). 2.3 CONVERSION OF WARRANTS. On the Closing Date, the Warrants shall be cancelled and converted into the right of Harbourside to receive the Warrant Stock Amount. The "WARRANT STOCK AMOUNT" shall mean shares of Miller Common Stock equal to (i) the Exchange Price MINUS the exercise price of each of the Warrants, (ii) MULTIPLIED by the total number of Warrants at each such exercise price, and (iii) DIVIDED by the Exchange Price. For example, if the Exchange Price is $5.50, the exercise price of the Warrants is $1.00 per share and there are 82,384 Warrants, the Warrant Stock Amount would equal 67,405 shares of Miller Common Stock (($5.50 - $1.00) X 82,384/$5.50). 2.4 FRACTIONAL SHARES. No fraction of a share of Miller Common Stock will be issued under this SECTION 2, but in lieu thereof Harbourside shall receive an amount of cash equal to such fraction multiplied by the Exchange Price. SECTION 3. CONSUMMATION OF THE TRANSACTIONS; CLOSING DATE. The consummation of the Exchange and the Warrant Conversion contemplated herein (the "CLOSING") shall take place at the offices of Kilpatrick Stockton LLP, 1100 Peachtree Street, Suite 2800 Atlanta, Georgia, on or as soon as possible after January 14, 2004 (the "CLOSING DATE"); PROVIDED, HOWEVER, THAT, (i) the Closing shall not occur until the conditions to closing set forth in SECTIONS 7 and 8 shall have been satisfied or waived by the party or parties entitled to 3 the benefit thereof, and (ii) if the Miller Shareholder Approval (as hereinafter defined) has not occurred, then the Exchange and Warrant Conversion shall not occur until the condition set forth in SECTION 7.6 has been satisfied. SECTION 4. REPRESENTATIONS AND WARRANTIES OF HARBOURSIDE. Harbourside represents and warrants to Miller Industries that: 4.1 AUTHORITY. It has all necessary limited liability limited partnership power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby. 4.2 BINDING AGREEMENT; NO VIOLATION. This Agreement has been, and will be as of the Closing Date, duly executed and delivered by Harbourside and constitutes the legal, valid and binding obligation of Harbourside, enforceable against it in accordance with the respective terms hereof. The execution and delivery of this Agreement by Harbourside, and the consummation of the transactions contemplated by this Agreement, will not violate any of the organizational documents of Harbourside or result in a Conflict (as hereinafter defined) with the provisions of any material Law or Order to which Harbourside is a party or is bound. 4.3 TITLE TO SUBORDINATED DEBT. All of the Notes owned by Harbourside are held by Harbourside, free and clear of any Liens. Upon the parties' receipt of all of the Closing deliverables set forth in SECTION 1, the obligations of Miller Industries with respect to the portion of the Notes constituting the Aggregate Conversion Amount will be extinguished, and all obligations under the remaining Notes will be replaced with the obligations under the Tranche B Note. 4.4 INVESTMENT REPRESENTATION. (a) The shares of Miller Common Stock are being acquired for Harbourside's own account, for investment and not with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the United States Securities Act of 1933, as amended (the "SECURITIES ACT"), which is in violation of the Securities Act. (b) Harbourside is an accredited investor and (i) has such knowledge, sophistication and experience in business and financial matters that it is capable of evaluating the merits and risks of its investment in the shares of Miller Common Stock, and (ii) can bear the economic risk of an investment in such shares and can afford a complete loss of such investment. (c) Harbourside has received or has had full access to all of the information it considers necessary or appropriate to make an informed investment decision with respect to the shares of Miller Common Stock to be acquired by it under this Agreement. Harbourside further has had an opportunity to obtain additional information (to the extent Miller Industries possesses such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to Harbourside or to which it had access. 4 SECTION 5. REPRESENTATIONS AND WARRANTIES OF MILLER INDUSTRIES. Miller Industries represents and warrants to Harbourside that: 5.1 CORPORATE ORGANIZATION. Miller Industries is a corporation duly organized, validly existing and in good standing under the laws of the State of Tennessee and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. 5.2 CAPITAL STOCK. The shares of Miller Common Stock to be issued hereunder have been and will at the Closing be duly authorized and validly issued. All of the shares of Miller Common Stock to be issued hereunder will at the Closing be fully paid and nonassessable. Upon delivery of the shares of Miller Common Stock to Harbourside by the Transfer Agent as provided in SECTION 1, Harbourside will acquire good and valid title to the shares of Miller Common Stock, free and clear of any Liens. 5.3 CORPORATE POWER AND AUTHORITY; BINDING AGREEMENT. (a) Miller Industries has all necessary corporate power and authority to execute and deliver this Agreement and a Registration Rights Agreement (as hereinafter defined), to perform its obligations hereunder and thereunder, subject to obtaining the approval of the Exchange and the Warrant Conversion by the holders of a majority of the qualified shares of Miller Common Stock at the Shareholders' Meeting (as defined below) (the "MILLER SHAREHOLDER APPROVAL"), to consummate the Exchange, the Warrant Conversion, the Note Amendment and the other transactions contemplated by this Agreement. The execution, delivery and performance by Miller Industries of this Agreement and the other transactions contemplated by this Agreement, have been duly authorized by all necessary corporate action (including, without limitation, the approval of the Board) and no other corporate proceedings on the part of Miller Industries are necessary to authorize this Agreement, a Registration Rights Agreement or to consummate the Exchange, the Warrant Conversion, the Note Amendment or any other transactions contemplated by this Agreement (other than obtaining the Miller Shareholder Approval with respect to the Exchange). (b) This Agreement has been duly executed and delivered by Miller Industries and constitutes the legal, valid and binding obligation of Miller Industries, enforceable against Miller Industries in accordance with its terms. 5.4 NO VIOLATION. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement conflict with, or will result in any violation or breach of or event of default under (any such event, a "CONFLICT"), any provision of (i) the Charter, as amended, or the Bylaws, as amended, of Miller Industries, (ii) any Law or Order, in each case, applicable to Miller Industries or its respective properties or assets or (iii) whether or not with notice or lapse of time, or both, any agreement, indenture or instrument to which Miller Industries is a party or by which its assets are bound. 5.5 OPINION OF FINANCIAL ADVISOR. Prior to the date hereof, the Financial Advisor has delivered to the Board its oral opinion that, as of such date and subject to customary 5 assumptions, qualifications and limitations, the terms of the Exchange are fair, from a financial point of view, to the shareholders of Miller Industries other than the Insiders. 5.6 SOLVENCY. Miller Industries is, and after consummation of the transactions contemplated by this Agreement will be, Solvent. "SOLVENT" as used herein, means that Miller Industries is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (ii) Miller Industries does not intend to, and does not believe that it will, incur such debts or liabilities beyond Miller Industries' ability to pay as such debts and liabilities mature in their ordinary course, (iii) Miller Industries is not engaged in a business or a transaction and is not about to engage in a business or a transaction, for which Miller Industries' property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which Miller Industries is engaged or is to engage, (iv) the fair value of the property of Miller Industries is greater than the total amount of liabilities, including without limitation, contingent liabilities, of Miller Industries and (v) the present fair salable value of the assets of Miller Industries is not less than the amount that will be required to pay the probable liability of Miller Industries on its debts as they become absolute and matured. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. 5.7 DISCLOSURE. Miller Industries hereby represents that all documents filed by it with the Securities and Exchange Commission ("SEC") have contained all material information required to be disclosed therein, and have not contained any misstatements of a material fact or omitted to state any material fact necessary to make the statements set forth therein not misleading. 5.8 INDEBTEDNESS OUTSTANDING. Miller Industries issued $14,000,000.00 principal amount of notes under the Note Credit Agreement and, as of the date of this Agreement, the outstanding principal amount of such is $13,849,086.18. True and correct copies of the Note Credit Agreement and the Warrant Agreement have been provided to Harbourside and such agreements have not been amended or modified and remain in full force and effect. The exercise price and the number of Warrant shares for which a Warrant is exercisable has not been adjusted pursuant to the terms of the Warrant Agreement or otherwise. SECTION 6. ADDITIONAL COVENANTS AND AGREEMENTS. 6.1 SHAREHOLDERS' MEETING. Subject to the fiduciary duties of the Board, applicable Law and the other provisions of this Agreement, Miller Industries shall, in accordance with applicable Law, its Charter and its Bylaws, duly call, give notice of, convene, and hold a special meeting of its shareholders as soon as reasonably practicable for the purpose of obtaining the Miller Shareholder Approval (the "SHAREHOLDERS' MEETING"). 6.2 FURTHER ASSURANCES. Each party hereto, at the request of the other party hereto, shall execute and deliver such other instruments of transfer, conveyance, assignment or other documents and do and perform such other acts and things as may be necessary or desirable for effecting completely and promptly the consummation of the Exchange, the Warrant Conversion 6 and the transactions contemplated hereby, including providing any documentation requested by any third party lender; PROVIDED, HOWEVER, that nothing in this SECTION 6.2 shall be construed to obligate any party to waive any of the closing conditions set forth in SECTIONS 7 or 8 or to obligate Harbourside to incur any expense or assume any obligation other than as otherwise provided in this Agreement. 6.3 REGISTRATION RIGHTS. The parties shall proceed to negotiate a registration rights agreement with respect to the shares of Miller Common Stock to be issued hereunder (a "REGISTRATION RIGHTS AGREEMENT") that is mutually satisfactory to the parties. 6.4 NOTE REPURCHASES, ETC. Miller Industries agrees that it will not repurchase, directly or indirectly, any notes issued under the Note Credit Agreement or any warrants issued under the Warrant Agreement other than on terms substantially identical to those set forth in this Agreement, without the prior written consent of Harbourside. 6.5 INDEMNITY. (a) Miller Industries shall indemnify, defend, and hold Harbourside and its affiliates and their respective officers, directors, agents, partners, members, affiliates and employees (collectively, "INDEMNITEES") harmless from and against any liability, claim, cost, loss, judgment, damage or expense (including reasonable attorneys' fees and expenses) that Indemnitees incur or suffer as a result of, or arising out of (i) breach of any of Miller Industries' representations, warranties, covenants or agreements in this Agreement, (ii) any third party claim arising out of the actions or inactions of Miller Industries in connection with this Agreement or the transactions contemplated hereby or (iii) any payments, setoffs or recoupments suffered by Harbourside as a result of Miller Industries not being Solvent as of the Closing. This SECTION 6.5 is a continuing obligation, separate and independent from the other obligations of the parties to this Agreement and survives termination of this Agreement and it is not necessary for an Indemnitee to incur expense or make payment before enforcing a right of indemnity conferred by this Agreement. (b) With respect to any claim by a third party as to which Harbourside is entitled to indemnification under SECTION 6.5(A)(II), Miller Industries shall have the right to assume control of the defense of such claim at its own expense, and Harbourside shall cooperate fully with Miller Industries in the defense of such claim at the expense of Miller Industries. If Miller Industries elects to assume control of the defense of any third-party claim, Harbourside shall have the right to participate in the defense of such claim and retain separate co-counsel at its own expense. 6.6 NYSE LISTING. Miller Industries shall use its best efforts to have the shares of Miller Common Stock to be issued to Harbourside hereunder be approved for listing on the NYSE. SECTION 7. CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective obligations of each party hereto to consummate the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, by agreement of all the parties hereto (it being understood that each such condition is solely for the benefit of the parties hereto 7 and may be waived in writing by their mutual agreement without notice, liability, or obligation to any Person): 7.1 NO ORDER PREVENTING CONSUMMATION; ILLEGALITY. No Order issued by any Governmental Authority (as hereinafter defined) or other Law preventing the consummation of the transactions contemplated herein shall be in effect, nor shall any proceeding brought by a Governmental Authority seeking any of the foregoing be pending. 7.2 APPROVAL AND RECOMMENDATION. Neither the Special Committee nor the Board shall have withdrawn its approval or recommendation to the Miller Industries shareholders of this Agreement, the Exchange and the other transactions contemplated hereby; PROVIDED, HOWEVER, that any such withdrawal shall have been made in good faith based on a determination that such withdrawal is in the best interest of Miller Industries and its shareholders and is consistent with the fiduciary duties of the Miller Industries Board. 7.3 LITIGATION. There shall be no Action pending against Harbourside or Miller Industries, its properties or any of its respective officers or directors, arising out of, or in any way connected with the Exchange or the other transactions contemplated by the terms of this Agreement. 7.4 NYSE LISTING. The shares of Miller Common Stock to be issued hereunder shall have been approved for listing on the NYSE. 7.5 REGISTRATION RIGHTS AGREEMENT. The parties shall have entered into and delivered executed counterparts to each other of a Registration Rights Agreement mutually acceptable to the parties. 7.6 SHAREHOLDER APPROVAL. With respect to the Exchange and the Warrant Conversion, the Miller Shareholder Approval shall have been obtained at the Shareholders' Meeting. 7.7 AMENDMENT TO NOTE CREDIT AGREEMENT. Miller Industries, Contrarian Funds, LLC and Harbourside shall have entered into and delivered executed counterparts to each other of an amendment to the Note Credit Agreement in the form attached hereto as Exhibit A (the "CREDIT AGREEMENT AMENDMENT"). SECTION 8. ADDITIONAL CONDITIONS TO OBLIGATIONS OF HARBOURSIDE. In addition to the general closing conditions set forth in SECTION 7, the obligations of Harbourside to consummate the transactions contemplated hereby shall be subject to the following additional conditions: 8.1 COMPLIANCE WITH COVENANTS. Miller Industries shall have performed or complied with all agreements and covenants required to be performed by it under this Agreement at or prior to the Closing Date in all material respects and all representations and warranties of Miller Industries set forth in this Agreement shall be true and correct in all material respects. 8.2 OPINION. Harbourside shall have received an opinion from counsel of Miller Industries, in form and substance reasonably acceptable to Harbourside and its counsel, dated the 8 Closing Date, covering the matters set forth in SECTIONS 5.1, 5.2, 5.3 and 5.4, including due authorization and delivery, noncontravention and enforceability. SECTION 9. TERMINATION. 9.1 TERMINATION. This Agreement may be terminated and the transactions contemplated hereby may be abandoned: (a) at any time, by mutual written consent of Miller Industries and Harbourside; or (b) by Miller Industries or Harbourside, at any time after March 1, 2004, if the Closing shall not have occurred on or prior to such date; PROVIDED, HOWEVER, that the right to terminate this Agreement under this SECTION 9.1(B) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the primary cause of, or resulted in, the failure of the Closing to have occurred on or before such date. 9.2 EFFECT OF TERMINATION. Upon termination of this Agreement pursuant to SECTION 9.1, this Agreement shall become void and there shall be no liability on the part of Harbourside or Miller Industries, except as otherwise provided in this Agreement. Notwithstanding the foregoing, nothing contained herein shall relieve any party from liability for any willful breach of any covenant or agreement in this Agreement or for the incorrectness of any representation or warranty set forth in this Agreement. SECTION 10. MISCELLANEOUS. 10.1 PAYMENT OF EXPENSES. Except as otherwise specifically set forth below in this SECTION 10.1, each party hereto shall pay its own fees and expenses incident to preparing for, entering into, and carrying out this Agreement, the Exchange and any other transactions contemplated hereby. 10.2 PUBLICITY AND REPORTS. Harbourside shall not issue any press release or otherwise make any public statement or make any other public (or non-confidential) disclosure (regardless of whether it is in response to an inquiry) regarding the terms of this Agreement, the Exchange or the transactions contemplated hereby, except as required by Law. The parties hereto acknowledge that Miller Industries is a publicly traded company and, as such, will be entitled to make such public statements or disclosures as it reasonably believes to be required by applicable Law, including the rules of the NYSE. 10.3 ASSIGNMENT. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of law or otherwise by either party hereto without the prior written consent of the other party hereto, except that Harbourside may assign this Agreement in connection with an assignment of the Notes to a third party as long as the assignment provisions of the Notes are complied with (or properly waived) in connection with such assignment. 10.4 GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be 9 performed in the State of New York, without regard to any laws that might otherwise govern under applicable principles of conflicts of laws thereof. 10.5 COUNTERPARTS. This Agreement may be executed in one or more counterparts (including by telecopy), all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart. 10.6 AMENDMENT. Except as is otherwise required by applicable Law, this Agreement may be amended by the parties hereto at any time only by execution of an instrument in writing signed on behalf of each of the parties hereto. 10.7 PARTIES IN INTEREST. No provisions of this Agreement are intended, nor shall be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any client, customer, affiliate, partner of any party hereto or any other Person unless specifically provided otherwise herein. 10.8 NOTICES. Any notice or communication required or permitted hereunder shall be in writing, shall be effective when received, and shall in any event be deemed to have been received (a) when delivered, if delivered personally or by commercial delivery service, (b) one (1) business day after the business day of deposit with FedEx or similar overnight courier for next day delivery (or two (2) business days after such deposit if deposited for second business day delivery), if delivered by such means, or (c) one (1) business day after delivery by facsimile transmission with copy by U.S. Mail, if sent via facsimile plus mail copy (with acknowledgment of complete transmission), to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): If to Miller Industries, addressed to: Miller Industries, Inc. 8503 Hilltop Drive Ooltewah, Tennessee 37363 Attention: A. Russell Chandler, III, Chairman of the Special Committee Telephone: (770) 988-9891 Facsimile No.: (404) 847-0552 with a copy (which shall not constitute notice) to: Kilpatrick Stockton LLP 1100 Peachtree Street Suite 2800 Atlanta, Georgia 30309 Attention: David A. Stockton, Esq. Telephone No.: (404) 815-6444 Facsimile No.: (404) 541-3402 10 with a copy (which shall not constitute notice) to: Nelson Mullins Riley & Scarborough, LLP 999 Peachtree Street, Suite 1400 1201 Peachtree Street Atlanta, GA 30309 Attention: Robert D. Pannell, Esq. Telephone No.: (404) 817-6177 Facsimile No.: (404) 817-6219 If to Harbourside, addressed to: Harbourside Investments, LLLP 5025 Harrington Road Alpharetta, Georgia 30022 Attention: William G. Miller, General Partner Telephone: (678) 762-4739 Facsimile No.: (678) 762-9868 10.9 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, including the Miller Industries, Inc. Binding Restructuring Agreement executed by Miller Industries, Contrarian Funds, LLC and Harbourside on December 24, 2003, among the parties with respect to the subject matter hereof and is not intended to confer upon any other person any rights or remedies hereunder. 10.10 HEADINGS. The section headings and subheadings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. 10.11 SEVERABILITY. If any provision of this Agreement is held or declared by a court of competent jurisdiction to be illegal, invalid or unenforceable under any present or future Law, and if the rights or obligations of any party hereto under this Agreement will not be materially and adversely affected thereby, (a) such provision will be fully severable, (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom and (d) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible. 10.12 CERTAIN DEFINITIONS. Capitalized terms that are not defined in other Sections of this Agreement shall have the following meanings: "GOVERNMENTAL APPROVALS" shall mean any notices, reports, declarations or other filings to be made, or any Permits to be obtained from, any Governmental Authority; 11 "GOVERNMENTAL AUTHORITY" shall mean any supranational, national, federal, state, municipal, local or foreign government, any court, tribunal, arbitrator, administrative agency, commission or other governmental official, authority or instrumentality, in each case whether domestic or foreign, any stock exchange or similar self-regulatory organization or any quasi-governmental or private body exercising any regulatory, taxing or other governmental or quasi-governmental authority; "LAW" shall mean all laws, statutes, constitutions and ordinances, and all regulations, rules and other pronouncements issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority having the effect of law of the United States, any foreign country, or any domestic or foreign state, province, commonwealth, city, country, municipality, territory, protectorate, possession or similar instrumentality, or any Governmental Authority thereof; "LIEN" shall mean any pledge, lien, collateral assignment, security interest, deed of trust, mortgage, title retention device, collateral assignment, claim, license or other contractual restriction (including any restriction on the transfer of any asset, the receipt of income derived from any asset or on the possession, exercise or transfer of any other attribute of ownership of any asset), conditional sale or other security arrangement, or any charge, adverse claim of title, ownership or right to use or any other encumbrance of any kind whatsoever; "ORDER" shall mean any order, writ, judgment, decree, injunction, ruling, directive or other requirement of any Governmental Authority (in each case, whether preliminary or final); and "PERSON" shall mean any individual, a general or limited partnership, a corporation, a trust, a joint venture, an unincorporated organization, a limited liability entity, any other entity and any Governmental Authority. [SIGNATURES FOLLOW ON NEXT PAGE] 12 IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of the date and year first above written. MILLER INDUSTRIES: MILLER INDUSTRIES, INC. By: /s/ A. Russell Chandler -------------------------- Name: A. Russell Chandler ------------------------ Title: Chairman, Special Committee of the Board of Directors HARBOURSIDE: HARBOURSIDE INVESTMENTS, LLLP By: /s/ William G. Miller ------------------------- Name: William G. Miller Title: General Partner 13 EXHIBIT A AMENDMENT TO NOTE CREDIT AGREEMENT (INCLUDING FORM OF TRANCHE B NOTE) 14