United States
Securities And Exchange Commission
Washington, DC 20549
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FORM 8-K
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CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 21, 2020
MILLER INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Tennessee |
001-14124 |
62-1566286 |
(State or Other Jurisdiction of Incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
8503 Hilltop Drive, Ooltewah, Tennessee
37363
(Address of Principal Executive Offices)
(Zip Code)
(423) 238-4171
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
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Title of Each Class |
Trading Symbol(s) |
Name of Each Exchange on Which Registered |
Common Stock, par value $0.01 per share |
MLR |
New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
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Item 1.01 |
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Entry into a Material Definitive Agreement. |
On December 21, 2020, Miller Industries, Inc. (the “Company”) and certain of its subsidiaries entered into (a) an Amended and Restated Loan Agreement (the “Amended Loan Agreement”) with First Horizon Bank (formerly known as First Tennessee Bank National Association) (“First Horizon”), and (b) an Amended and Restated Master Revolving Credit Note, dated as of December 21, 2020, in the principal amount of $50.0 million, with a maturity date of May 31, 2027 (the “Amended Note”).
The Amended Loan Agreement amends and restates the prior Amended and Restated Loan Agreement dated as of December 20, 2018 governing the Company’s existing $50.0 million unsecured revolving credit facility with First Horizon (the “Prior Loan Agreement”) to, among other things: (i) renew and extend the maturity date from May 31, 2022 to May 31, 2027 and make certain other conforming changes, (ii) amend the tangible net worth covenant to increase the minimum required compliance level thereunder from $160 million to $190 million, and (iii) allow for the sale and leaseback of certain equipment as set forth therein. All other material terms and conditions of the Prior Loan Agreement remain unchanged.
The Amended Note amends and restates the prior Amended and Restated Master Revolving Credit Note, dated as of December 20, 2018 in the principal amount of $50.0 million (the “Prior Note”) to, among other things: (i) extend the maturity date from May 31, 2022 to May 31, 2027, and (ii) make certain other changes to the interest rate provisions in the Amended Note relating to the determination of a replacement rate in the event that the LIBOR Rate (as defined therein) is no longer available. All other material terms of the Prior Note remain unchanged.
The foregoing descriptions of the Amended Loan Agreement and the Amended Note are qualified in their entirety by reference to the Amended Loan Agreement and the Amended Note, copies of which are attached as Exhibit 10.1 and 10.2, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.
Item 2.03 |
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information required by Item 2.03 relating to the Amended Loan Agreement and the Amended Note is contained in Item 1.01 of this Current Report on Form 8-K and is incorporated herein by reference.
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Item 9.01 |
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Financial Statements and Exhibits. |
(d)Exhibits.
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Exhibit No. |
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Exhibit Description |
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104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Miller Industries, Inc.
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By: |
/s/ Deborah L. Whitmire |
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Deborah L. Whitmire |
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Executive Vice President, Chief Financial Officer and Treasurer |
Dated: December 23, 2020 |
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Exhibit 10.1
AMENDED AND RESTATED
LOAN AGREEMENT
[This Amended and Restated Loan Agreement amends and replaces the certain Amended and Restated Loan Agreement dated December 20, 2018 by and among the below named Borrower parties (collectively, the "Borrower") and First Tennessee Bank National Association now known as First Horizon Bank (the "Bank").]
THIS AMENDED AND RESTATED LOAN AGREEMENT ("Loan Agreement") is made as of December 21, 2020, by and among MILLER INDUSTRIES, INC., a Tennessee corporation, APACO, INC., a Delaware corporation, CHAMPION CARRIER CORPORATION, a Delaware corporation, MILLER/GREENEVILLE, INC., a Tennessee corporation, MILLER FINANCIAL SERVICES GROUP, INC., a Delaware corporation (as successor by name change to Miller Industries Distributing, Inc.), MILLER INDUSTRIES INTERNATIONAL, INC., a Tennessee corporation, MILLER INDUSTRIES TOWING EQUIPMENT INC., a Delaware corporation (singularly and collectively, the "Borrower"), whose address is c/o Miller Industries, Inc, 8503 Hilltop Drive, Ooltewah, Tennessee 37363 and FIRST HORIZON BANK, a Tennessee banking corporation, successor by conversion to First Tennessee Bank National Association, a national banking association, with offices at 701 Market Street, Chattanooga, Tennessee 37402 (hereinafter referred to as the "Bank").
Recitals of Fact
In 2010, Borrower requested that the Bank commit to make loans and advances to it on a master revolving credit basis, for purchase cards, letters of credit and other forms of lending, in an amount not to exceed at any one time outstanding the principal sum of Twenty Million and NO/100 Dollars ($20,000,000.00) and the Bank made such loan.
In 2011, Borrower requested that the Bank commit to make loans and advances to it on a master revolving credit basis, for letters of credit and other forms of lending, in an amount not to exceed at any one time outstanding the principal sum of Twenty Five Million and NO/100 Dollars ($25,000,000.00) and the Bank made such loan, which replaced the 2010 Twenty Million and NO/100 Dollars ($20,000,000.00) loan.
In 2012, Borrower requested that the Bank extend the maturity date of the Twenty Five Million and NO/100 Dollars ($25,000,000.00) loan, and the Bank agreed to do so.
In 2013, Borrower requested that the Bank extend the maturity date of the Twenty Five Million and NO/100 Dollars ($25,000,000.00) loan, and the Bank agreed to do so.
In 2014, Borrower requested that the Bank extend the maturity date of the Twenty Five Million and NO/100 Dollars ($25,000,000.00) loan, and the Bank agreed to do so.
In 2015, Borrower requested that the Bank increase the Loan from Twenty Five Million and NO/100 Dollars ($25,000,000.00) to Thirty Million and NO/100 Dollars ($30,000,000.00) and further extend the maturity date of the existing loan, and the Bank agreed to do so.
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In 2016, Borrower requested that the Bank increase the Loan from Thirty Million and NO/100 Dollars ($30,000,000.00) to Fifty Million and NO/100 Dollars ($50,000,000.00) and further extend the maturity date of the existing loan, and the Bank agreed to do so.
In 2017, Borrower requested that the Bank further extend the maturity date of the Fifty Million and NO/100 Dollars ($50,000,000.00) loan, and the Bank agreed to do so.
In July, 2018, Borrower requested that the Bank further extend the maturity date of the Fifty Million and NO/100 Dollars ($50,000,000.00) loan, and the Bank agreed to do so.
In October, 2018, Borrower requested that the Bank reduce the pricing, amend tangible net worth covenant and extend the maturity date, and the Bank agreed to do so.
In November, 2020, Borrower requested that the Bank amend certain covenants and extend the maturity date, and the Bank agreed to do so.
NOW, THEREFORE, incorporating the Recitals of Fact set forth above and in consideration of the mutual agreements herein contained, the parties agree as follows:
AGREEMENTS
SECTION 1: | DEFINITIONS AND ACCOUNTING TERMS |
"Business Day" means a banking business day of the Bank.
"Capital Lease" means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee which, in accordance with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person; provided, however, that for purposes of (a) determining compliance with the financial covenants in Section 6.13 and 6.14 hereof, and (b) determining Indebtedness for purposes of compliance with Section 7.1 hereof, leases that are classified as operating leases in accordance with GAAP as in effect on June 30, 2018 shall continue to be treated as operating leases notwithstanding any changes in GAAP occurring after June 30, 2018 that otherwise require such leases to be treated as Capital Leases.
"Cash" shall have the meaning prescribed in accordance with GAAP.
"Chassis Financing" shall have the meaning ascribed to such term in paragraph (e) of the definition of Permitted Encumbrances.
"Closing Date" means the date set out in the first paragraph of this Loan Agreement.
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"Consolidated Companies" or “Consolidated Company” means Miller Industries, Inc. and each of its Subsidiaries.
"EBITDA" means for the applicable period, the sum, without duplication, of Net Income Before Taxes of the Consolidated Companies on a consolidated basis for such period and to the extent deducted in determining such Net Income Before Taxes on a consolidated basis: (A) Interest Expenses of the Consolidated Companies on a consolidated basis for such period; (B) depreciation and amortization expenses of the Consolidated Companies on a consolidated basis for such period; and (C) other non-cash charges of the Consolidated Companies on a consolidated basis for such period.
"Environmental Laws" means all local, state or federal laws, rules or regulations pertaining to environmental regulation, contamination or cleanup, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976 or any state lien or superlien or environmental cleanup statutes.
"Event of Default" has the meaning assigned to that phrase in Section 8.
"FLSA" means the Fair Labor Standards Act of 1938, as amended.
"GAAP" means generally accepted accounting principles in the United States applied on a consistent basis.
"Guaranty Obligations" means, with respect to any Person, without duplication, any obligations (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations of any Person (other than another Borrower) in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (a) to purchase any such Indebtedness or other obligation or any Property constituting security therefor, (b) to advance or provide funds or other support for the payment or purchase of such Indebtedness or obligation or to maintain working capital, solvency or other balance sheet condition of such other Person (including, without limitation, maintenance agreements, comfort letters, take or pay arrangements, put agreements or similar agreements or arrangements) for the benefit of the holder of Indebtedness of such other Person, (c) to lease or purchase Property, securities or services primarily for the purpose of assuring the owner of such Indebtedness or obligation, or (d) to otherwise assure or hold harmless the owner of such Indebtedness or obligation against loss in respect thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made.
"Hazardous Substances" shall mean and include all hazardous and toxic substances, wastes or materials, any pollutants or contaminants (including, without limitation, asbestos and raw materials which include hazardous constituents), or any other similar substances or materials which are included under or regulated by any Environmental Laws.
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"Indebtedness" of any Person means all liabilities, obligations and indebtedness of that Person at any date and of any and every kind and nature but limited to, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations, including, without limitation, intercompany items, of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person which would appear as liabilities on a balance sheet of such Person, (d) all indebtedness secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, Property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (e) all Guaranty Obligations of such Person, (f) the principal portion of all obligations of such Person under (i) Capital Leases and (ii) any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product of such Person where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP (collectively "Synthetic Leases"), (g) all obligations of such Person in respect of interest rate protection agreements, foreign currency exchange agreements, or other interest or exchange rate or commodity price hedging agreement, (h) the maximum amount of all commercial letters of credit and the maximum amount of all performance and standby letters of credit issued or bankers' acceptances facilities created for the account of such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), and (i) all preferred stock issued by such Person and required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed date. The Indebtedness of any Person shall include the Indebtedness of any partnership or unincorporated joint venture in which such Person is legally obligated or has a reasonable expectation of being liable with respect thereto.
"Interest Expense" means, for any period, with respect to the Consolidated Companies on a consolidated basis, all interest expense, including the interest component under Capital Leases, as determined in accordance with GAAP.
"Letters of Credit" means any letter of credit issued for the account of a Borrower that is included as part of this Revolving Credit Loan pursuant to this Loan Agreement.
"Leverage Ratio" means, as of the end of each fiscal quarter of the Consolidated Companies, for the twelve (12) month period ending on such date, with respect to the Consolidated Companies on a consolidated basis, the ratio of Indebtedness for borrowed money (other than any Chassis Financing) to EBITDA, plus Cash.
"Lien" means any interest in Property securing an 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 security interest or lien arising from a deed of trust, mortgage, encumbrance, pledge, conditional sale or trust receipt, interest of a lessor under a Capital Lease or consignment or bailment for security purposes, and including but not limited to reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases, and other title exceptions and encumbrances affecting Property but not including the interest of any lessor under a lease which is not a Capital Lease. For the purposes of this Loan Agreement, the Borrower shall be deemed to be the owner of any Property which it has acquired or holds subject to a conditional sale agreement, lease, financing lease or other
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arrangement pursuant to which title to the Property has been retained by or is vested in some other Person.
"Loan Agreement" means this Amended and Restated Loan Agreement between the Borrower and the Bank as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith.
"Material Adverse Effect" means a materially adverse effect on (a) the business, assets, liabilities or financial condition of the Consolidated Companies, taken as a whole or (b) the ability of the Borrower to perform its obligations under this Loan Agreement or the Note.
“Material Debt” shall have the meaning ascribed to such term in Section 8.2.
"Maximum Rate" means the maximum variable contract rate of interest which the Bank may lawfully charge under applicable statutes and laws from time to time in effect.
"Negative Pledge Agreement" means the Negative Pledge Agreement(s) dated on or about April 6, 2010, executed by any Borrower in favor of Bank and any similar negative pledge financing statements covering Property of any Borrower, as the Negative Pledge Agreement may be amended, supplemented or otherwise modified from time to time.
"Net Income Before Taxes" means the consolidated net income before income taxes of the Consolidated Companies for the applicable period determined in accordance with GAAP.
"Note" means the Amended and Restated Master Revolving Credit Note executed by the Borrower to the Bank, of even date herewith, as such note may be modified, renewed or extended from time to time; and any other note or notes executed by any Borrower at any time to evidence the indebtedness under this Loan Agreement, in whole or in part, and any renewals, modifications and extensions thereof, in whole or in part.
“Permitted Assignee” shall mean any successor in interest to Bank who has acquired all of the equity interests or all or substantially all of the assets of Bank.
“Permitted Borrowing” shall mean loans obtained by Consolidated Companies from lenders other than the Bank from time to time not exceeding $8,000,000.00 in the aggregate at any time.
"Permitted Encumbrances" shall mean and include:
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"Permitted Refinancing" means Indebtedness constituting a refinancing or extension of Indebtedness, which exists as of the date of this Loan Agreement or is otherwise not prohibited by this Loan Agreement, that (a) has an aggregate outstanding principal amount not greater than the aggregate principal amount of the Indebtedness being refinanced or extended, (b) has a weighted average maturity (measured as of the date of such refinancing or extension) and maturity no shorter than that of the Indebtedness being refinanced or extended, (c) is not entered into as part of a sale leaseback transaction, (d) is not secured by a Lien on any assets other than the collateral securing the Indebtedness being refinanced or extended, (e) the obligors of which are the same as the obligors of the Indebtedness being refinanced or extended and (f) is otherwise on terms no less favorable to the Borrower, than those of the Indebtedness being refinanced or extended.
"Person" means an individual, partnership, corporation, trust, unincorporated organization, association, joint venture or a government or agency or political subdivision thereof.
"Property" means as to any Borrower, all of that Borrower's property, whether real, personal, tangible, intangible or mixed, and other assets at any time owned, leased or operated by such Borrower.
"Related Person" shall mean any Borrower, all of Borrowers’ subsidiaries and any other Person (a) which now or hereafter directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, Borrower, or (b) which now or hereafter beneficially owns or holds five percent (5%) or more of the capital stock (partnership
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interests, of membership interests or other form of ownership interest of Borrower, or (c) five percent (5%) or more of the capital stock, partnership interest, membership interests or other form of ownership interest of which is beneficially owned or held by Borrower. For the purposes hereof, "control" shall mean possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting stock or interests, by contract or otherwise.
"Revolving Credit Advances" means advances of principal on the Revolving Credit Loan by the Bank under the terms of this Loan Agreement to any Borrower during the term of the Revolving Credit Loan pursuant to Section 3 of this Loan Agreement.
"Revolving Credit Loan" means the Borrower's revolving credit indebtedness to the Bank pursuant to Section 2 of this Loan Agreement.
"Revolving Credit Note" means the Note as described in Section 2.3 hereof.
"Subsidiary" of a Person means any corporation, association, limited liability company, partnership, joint venture or other business entity of which more than fifty percent (50%) of the voting Stock, is owned or controlled directly or indirectly by the Person, or one or more of the Subsidiaries of the Person, or a combination thereof.
"Tangible Net Worth" means the excess of the book value of the assets of the Consolidated Companies on a consolidated basis over its liabilities calculated in accordance with GAAP, provided, however, that in performing such calculation there shall be (a) excluded from the assets of the Consolidated Companies (i) any amount in respect of goodwill, (ii) any amounts owed to Consolidated Companies by a Related Person, and (iii) any amounts owed to Consolidated Companies by an employee of any Consolidated Company or of any Related Person to a Consolidated Company, and (b) included, as equity, any indebtedness owed by any Consolidated Company to any Person which indebtedness has, by formal, binding agreement (in form and substance satisfactory to Bank) been deferred and subordinated in priority of payment to the indebtednesses and obligations of Borrower to Bank.
"Termination Date of Revolving Credit Loan" shall mean the earlier of (a) May 31, 2027, or in the event that the Bank and Borrower shall hereafter mutually agree in writing that the Revolving Credit Loan and the Bank's commitment hereunder shall be extended to another date, and the Note shall be modified or amended to reflect such extension, such extended date pursuant to the foregoing, or (b) the date as of which Borrower shall have terminated the Bank's commitment under the provisions of Section 2.5 hereof.
SECTION 2: | COMMITMENT, FUNDING AND TERMS OF REVOLVING CREDIT LOAN |
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SECTION 3: | REQUIRED PAYMENTS, PLACE OF PAYMENT, ETC. |
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SECTION 4: | CONDITIONS OF LENDING |
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SECTION 5: | REPRESENTATIONS AND WARRANTIES |
Borrower represents and warrants that:
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SECTION 6: | AFFIRMATIVE COVENANTS OF BORROWER |
Borrower covenants and agrees that from the date hereof and until payment in full of the principal of and interest on indebtednesses evidenced by the Note, unless the Bank shall otherwise consent in writing, such consent to be at the discretion of the Bank, Borrower will:
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SECTION 7: | NEGATIVE COVENANTS OF BORROWER |
Borrower covenants and agrees that at all times from and after the Closing Date, unless the Bank shall otherwise consent in writing, such consent to be at the discretion of the Bank, it will not, either directly or indirectly:
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SECTION 8: | EVENTS OF DEFAULT |
An "Event of Default" shall exist if any of the following shall occur:
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(i)Any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than William G. Miller (or Persons, 100% of the Equity Interests of which are owned by William G. Miller) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person will be deemed to have “beneficial ownership” of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than thirty five percent (35)% of the total voting power of the then outstanding voting stock of Miller Industries, Inc.;
(ii)During any period of twelve (12) consecutive months ending after the date of this Loan Agreement, individuals who at the beginning of any such twelve (12) month period constituted the Board of Directors of Miller Industries, Inc. (together with any new directors whose election by such Board or whose nomination for election by the shareholders of Miller Industries, Inc. was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors of Miller Industries, Inc. then in office;
(iii) If William G. Miller or Deborah L. Whitmire cease for any reason to be principally involved in the senior management of Miller Industries, Inc., and Miller Industries, Inc. shall have failed to replace the resulting vacancies in senior management with reasonable replacements in a reasonable time period; or
(iv) If the Borrower shall sell all or substantially all of its assets other than
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pursuant to Section 7.4 or 7.8.
SECTION 9: | MISCELLANEOUS |
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The Note shall be governed and construed according to the statutes and laws of the State of Tennessee from time to time in effect, except to the extent that Section 85 of Title 12 of the United States Code (or other applicable federal statue) may permit the charging of a higher rate of interest than applicable state law, in which event such applicable federal statute, as amended and supplemented from time to time shall govern and control the maximum rate of interest permitted to be charged hereunder; it being intended that, as to the maximum rate of interest which may be charged, received, and collected hereunder, those applicable statutes and laws, whether state or federal, from time to time in effect, which permit the charging of a higher rate of interest, shall govern and control; provided, always, however, that in no event and under no circumstances shall
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the Borrower be liable for the payment of interest in excess of the maximum rate permitted by such applicable law, from time to time in effect.
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IN WITNESS WHEREOF, the Borrower and the Bank have caused this Loan Agreement to be executed by their duly authorized officers, all as of the day and year first above written.
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MILLER INDUSTRIES, INC. By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Executive Vice President, Chief Financial Officer and Treasurer |
STATE OF TENNESSEE
COUNTY OF HAMILTON
Personally appeared before me, Nadine L. Hancock, a Notary Public in and for said State and County duly commissioned and qualified, Deborah L. Whitmire, with whom I am personally acquainted, and who acknowledged that she executed the within instrument for the purposes therein contained, and who further acknowledged that she is the Executive Vice President, Chief Financial Officer and Treasurer of MILLER INDUSTRIES, INC. (the "Maker") and is authorized by the Maker to execute this instrument on behalf of the Maker.
WITNESS my hand, at office, this 20th day of December, 2020.
/s/ Nadine L. Hancock
Notary Public
My Commission Expires:
09/25/2021
(Notary Seal)
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APACO, INC. By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Vice President |
STATE OF TENNESSEE
COUNTY OF HAMILTON
Personally appeared before me, Nadine L. Hancock, a Notary Public in and for said State and County duly commissioned and qualified, Deborah L. Whitmire, with whom I am personally acquainted, and who acknowledged that she executed the within instrument for the purposes therein contained, and who further acknowledged that she is the Vice President of APACO, INC. (the "Maker") and is authorized by the Maker to execute this instrument on behalf of the Maker.
WITNESS my hand, at office, this 20th day of December, 2020.
/s/ Nadine L. Hancock
Notary Public
My Commission Expires:
09/25/2021
(Notary Seal)
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CHAMPION CARRIER CORPORATION By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Vice President |
STATE OF TENNESSEE
COUNTY OF HAMILTON
Personally appeared before me, Nadine L. Hancock, a Notary Public in and for said State and County duly commissioned and qualified, Deborah L. Whitmire, with whom I am personally acquainted, and who acknowledged that she executed the within instrument for the purposes therein contained, and who further acknowledged that she is the Vice President of CHAMPION CARRIER CORPORATION (the "Maker") and is authorized by the Maker to execute this instrument on behalf of the Maker.
WITNESS my hand, at office, this 20th day of December, 2020.
/s/ Nadine L. Hancock
Notary Public
My Commission Expires:
09/25/2021
(Notary Seal)
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MILLER/GREENEVILLE, INC. By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Vice President |
STATE OF TENNESSEE
COUNTY OF HAMILTON
Personally appeared before me, Nadine L. Hancock, a Notary Public in and for said State and County duly commissioned and qualified, Deborah L. Whitmire, with whom I am personally acquainted, and who acknowledged that she executed the within instrument for the purposes therein contained, and who further acknowledged that she is the Vice President of MILLER/GREENEVILLE, INC. (the "Maker") and is authorized by the Maker to execute this instrument on behalf of the Maker.
WITNESS my hand, at office, this 20th day of December, 2020.
/s/ Nadine L. Hancock
Notary Public
My Commission Expires:
09/25/2021
(Notary Seal)
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MILLER FINANCIAL SERVICES GROUP, INC., successor by name change to Miller Industries Distributing, Inc. By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire
Title: Vice President, Treasurer and Assistant
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STATE OF TENNESSEE
COUNTY OF HAMILTON
Personally appeared before me, Nadine L. Hancock, a Notary Public in and for said State and County duly commissioned and qualified, Deborah L. Whitmire, with whom I am personally acquainted, and who acknowledged that she executed the within instrument for the purposes therein contained, and who further acknowledged that she is the Vice President, Treasurer and Assistant Secretary of MILLER FINANCIAL SERVICES GROUP, INC., successor by name change TO Miller Industries Distributing, Inc. (the "Maker") and is authorized by the Maker to execute this instrument on behalf of the Maker.
WITNESS my hand, at office, this 20th day of December, 2020.
/s/ Nadine L. Hancock
Notary Public
My Commission Expires:
09/25/2021
(Notary Seal)
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MILLER INDUSTRIES INTERNATIONAL, INC. By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Vice President |
STATE OF TENNESSEE
COUNTY OF HAMILTON
Personally appeared before me, Nadine L. Hancock, a Notary Public in and for said State and County duly commissioned and qualified, Deborah L. Whitmire, with whom I am personally acquainted, and who acknowledged that she executed the within instrument for the purposes therein contained, and who further acknowledged that she is the Vice President of MILLER INDUSTRIES INTERNATIONAL, INC. (the "Maker") and is authorized by the Maker to execute this instrument on behalf of the Maker.
WITNESS my hand, at office, this 20th day of December, 2020.
/s/ Nadine L. Hancock
Notary Public
My Commission Expires:
09/25/2021
(Notary Seal)
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MILLER INDUSTRIES TOWING EQUIPMENT INC. By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Vice President |
STATE OF TENNESSEE
COUNTY OF HAMILTON
Personally appeared before me, Nadine L. Hancock, a Notary Public in and for said State and County duly commissioned and qualified, Deborah L. Whitmire, with whom I am personally acquainted, and who acknowledged that she executed the within instrument for the purposes therein contained, and who further acknowledged that she is the Vice President of MILLER INDUSTRIES TOWING EQUIPMENT INC. (the "Maker") and is authorized by the Maker to execute this instrument on behalf of the Maker.
WITNESS my hand, at office, this 20th day of December, 2020.
/s/ Nadine L. Hancock
Notary Public
My Commission Expires:
09/25/2021
(Notary Seal)
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FIRST HORIZON BANK By: /s/ Robert T. Lusk Name: Robert T. Lusk Title: Senior Vice President |
STATE OF Tennessee
COUNTY OF Hamilton
Before me, a Notary Public in and for the State and County aforesaid, personally appeared Robert T. Lusk, with whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and who, upon oath, acknowledged himself to be a Senior Vice President of FIRST HORIZON BANK, the within named bargainor, a national banking association, and that he as such Senior Vice President, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the association by himself as such Senior Vice President.
WITNESS my hand and seal at office, this 21st day of December, 2020.
/s/ Ursula Jenkins-Turner |
Notary Public |
My Commission Expires: |
12/29/21 |
(Notary Seal)
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EXHIBIT "A"
FORM OF REVOLVING CREDIT NOTE
B-1
EXHIBIT "B"
CHECKLIST FOR CLOSING
B-2
EXHIBIT "C"
NON-DEFAULT CERTIFICATE
As of __________________, 20_____
The undersigned, a duly authorized officer of the undersigned companies [hereinafter referred to as the “Borrower” in that certain Amended and Restated Loan Agreement (the “Loan Agreement”) dated as of December ____, 2020 among Borrower and First Horizon Bank (the "Bank")], certifies to said Bank, in accordance with the terms and provisions of said Loan Agreement, as follows:
1. | All of the representations and warranties set forth in the Loan Agreement are and remain true and correct in all material respects on and as of the date of this Certificate with the same effect as though such representations and warranties have been made on and as of this date; provided, that, to the extent that any representation or warranty relates to a prior specific date, such representation or warranty shall be true and correct in all material respects as of such prior date. |
2. | Borrower certifies that the information set forth in this Non-Default Certificate is true and correct in all material respects. |
3. | Borrower's Minimum Tangible Net Worth is currently $_____________________, which is not less than One Hundred Ninety Million and NO/100 Dollars ($190,000,000.00). |
4. | Borrower's current Leverage Ratio is ________ to 1:00 calculated using numbers for the previous twelve (12) month period. Indebtedness for borrowed money (excluding Chassis Financing) ($____________) EBITDA ($____________), plus Cash ($____________), which is less than 2.00 to 1.00. |
5. | As of the date hereof, Borrower is in compliance in all material respects with all of the terms and provisions set forth in the Loan Agreement and all of the instruments and documents executed in connection therewith, and no Event of Default (as |
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specified in the Loan Agreement), nor any event which, upon notice, lapse of time or both, would constitute an Event of Default, has occurred and is continuing, except as noted below:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Dated: _____ day of ____________________, 20___.
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MILLER INDUSTRIES, INC. By: _________________________________ Name: Deborah L. Whitmire Title: Executive Vice President, Chief Financial Officer and Treasurer |
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APACO, INC. By: __________________________________ Name: Deborah L. Whitmire Title: Vice President |
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CHAMPION CARRIER CORPORATION By: __________________________________ Name: Deborah L. Whitmire Title: Vice President |
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MILLER/GREENEVILLE, INC. By: __________________________________ Name: Deborah L. Whitmire Title: Vice President |
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MILLER FINANCIAL SERVICES GROUP, INC. By: __________________________________ Name: Deborah L. Whitmire Title: Vice President, Treasurer and Assistant Secretary |
C-2
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MILLER INDUSTRIES INTERNATIONAL, INC. By: __________________________________ Name: Deborah L. Whitmire Title: Vice President |
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MILLER INDUSTRIES TOWING EQUIPMENT INC. By: __________________________________ Name: Deborah L. Whitmire Title: Vice President |
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EXHIBIT "D"
LIST OF BORROWERS AND THEIR STATES/COUNTRIES OF ORGANIZATION
APACO, INC. |
a Delaware corporation |
CHAMPION CARRIER CORPORATION |
a Delaware corporation |
MILLER INDUSTRIES, INC. |
a Tennessee corporation |
MILLER/GREENEVILLE, INC. |
a Tennessee corporation |
MILLER FINANCIAL SERVICES GROUP, INC. |
a Delaware corporation |
MILLER INDUSTRIES INTERNATIONAL, INC. |
a Tennessee corporation |
MILLER INDUSTRIES TOWING EQUIPMENT INC. |
a Delaware corporation |
D-1
Exhibit 10.1
EXHIBIT "E"
SUBSIDIARY/SUBSIDIARIES OWNED BY ANY BORROWER
APACO, INC. |
a Delaware corporation |
BONIFACE ENGINEERING, LTD. |
a United Kingdom private limited company |
CHAMPION CARRIER CORPORATION |
a Delaware corporation |
JIGE INTERNATIONAL, S.A. |
a French company |
MILLER/GREENEVILLE, INC. |
a Tennessee corporation |
MILLER FINANCIAL SERVICES GROUP, INC. |
a Delaware corporation |
MILLER INDUSTRIES INTERNATIONAL, INC. |
a Tennessee corporation |
MILLER INDUSTRIES TOWING EQUIPMENT INC. |
a Delaware corporation |
E-1
Exhibit 10.2
AMENDED AND RESTATED MASTER REVOLVING CREDIT NOTE
[This Amended and Restated Master Revolving Credit Note amends and replaces that certain
Master Revolving Credit Note dated as of December 20, 2018 from the undersigned payable to the order of First Tennessee Bank National Association, now known as First Horizon Bank (the “Existing Note”).]
$50,000,000.00 |
Chattanooga, Tennessee Dated as of December 21, 2020 |
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Except as may be otherwise extended pursuant to the Loan Agreement (hereinafter defined), on May 31, 2027 (the “Termination Date”) the undersigned, MILLER INDUSTRIES, INC., a Tennessee corporation, APACO, INC., a Delaware corporation, CHAMPION CARRIER CORPORATION, a Delaware corporation, MILLER/GREENEVILLE, INC., a Tennessee corporation, MILLER FINANCIAL SERVICES GROUP, INC., a Delaware corporation (as successor by name change to Miller Industries Distributing, Inc.), MILLER INDUSTRIES INTERNATIONAL, INC., a Tennessee corporation, MILLER INDUSTRIES TOWING EQUIPMENT INC., a Delaware corporation, (singularly and collectively, the "Maker"), promises to pay to the order of FIRST HORIZON BANK, a Tennessee banking corporation, successor by conversion to First Tennessee Bank National Association, a national banking association, having a principal place of business in Chattanooga, Tennessee (the "Bank"), the principal sum of Fifty Million and NO/100 Dollars ($50,000,000.00), or, if less, the aggregate unpaid principal amount of all Revolving Credit Advances made to the undersigned pursuant to the Loan Agreement (as hereinafter defined), together with interest upon disbursed and unpaid principal balances of the Revolving Credit Advances, at the rate hereinafter specified, said interest being payable quarterly on the last day of each quarter hereafter commencing December 31, 2020, and continuing on each March 31, June 30, September 30, and December 31 thereafter, with the final installment of interest being due and payable concurrently on the same date that the remaining principal balance is due hereunder.
This Note is being executed in connection with that certain Amended and Restated Loan Agreement dated of even date herewith among Maker and Bank (as amended, supplemented or otherwise modified from time to time, the "Loan Agreement"). To the extent that any provisions of this Note are inconsistent with the Loan Agreement, the Loan Agreement shall govern and control. Any capitalized terms used herein and not otherwise defined herein, shall have their respective meanings in the Loan Agreement.
Subject to the limitations hereinafter set forth, each advance hereunder shall bear interest on the outstanding principal amount thereof from and including the first day of the Interest Period (hereinafter defined) to and including the last day of such Interest Period at a rate per annum equal to the sum of (a) the Applicable Margin to Revolving Loan (hereinafter defined), plus (b) the LIBOR Rate. "LIBOR Rate" shall mean the independent index which is the London Interbank Offered Rate of interest for an interest period of one (1) month, which appears on Bloomberg page BBAM under the column heading “USD” on the day that is two (2) London Business Days
preceding the end of each Interest Period (the “Reset Date”). “London Business Day” shall mean any day on which commercial lenders in London, England are open for general business. As used herein, the term "Interest Period" initially means from the date of this Note through the end of the current month and then each calendar month thereafter, with the LIBOR Rate plus the Applicable Margin to Revolving Loan adjusting based upon the grid below. Notwithstanding anything contained in this Note to the contrary, the LIBOR Rate and the Replacement Rate (hereinafter defined) under this Note shall never be less than zero (0%).
"Applicable Margin to Revolving Loan" means the percentage rate set forth in the table below corresponding to the level (each, a “Level”) into which the Borrower’s Leverage Ratio then falls:
Level |
Leverage Ratio |
Applicable Margin
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1 |
Less than 1.00 to 1:00 |
1.00% |
2 |
Equal to 1.00 to 1.00 but less than 2.00 to 1.00 |
1.25% |
Any change in the Borrower’s Leverage Ratio which would cause it to move to a different Level shall be effective as of the first day of the first calendar month immediately following receipt by the Bank of the Non-Default Certificate showing the Leverage Ratio has changed; provided, however, if the Borrower has not delivered the Non-Default Certificate as required by Section 6.12 of the Loan Agreement the Bank may, in its sole discretion, adjust the Level to the Default Rate effective as of the day following the Bank's determination that such adjustment should be made, until such time as a Non-Default Certificate as required by Section 6.12 of the Loan Agreement has been delivered by the Borrower to the Bank.
NOTICE: Under no circumstances will the interest rate on the Note be more than the maximum rate allowed by applicable law (the “Maximum Rate”).
Notwithstanding the foregoing, if at any time the Bank determines (which determination shall be conclusive absent manifest error):
(A) that:
(i) by reason of circumstances affecting the London interbank Eurodollar market, the LIBOR Rate cannot be determined, or
(ii) (x) United States dollar deposits are not being offered to banks in the London interbank Eurodollar market for the applicable amount and interest period set forth above or (y) the LIBOR Rate for such interest period set forth above does not adequately and fairly reflect the cost to Bank of funding such loan and in either event, such circumstances are unlikely to be temporary;
or
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(B) that the circumstances set forth in (A) above have not arisen, but the supervisor for the administrator of the LIBOR Rate or a Governmental Authority (hereinafter defined) has made a public statement identifying a specific date after which the LIBOR Rate shall no longer be used for determining interest rates for loans or that the LIBOR Rate is no longer representative or a Change in Law has occurred that makes it unlawful for Bank to make or maintain a LIBOR Rate or the current interest rate on the Note,
then, in either event, reasonably promptly thereafter the Bank shall notify the Borrower of such event and shall designate an alternate rate of interest to the LIBOR Rate (or current interest rate) to be used as the Index that gives due consideration to any evolving or then-existing convention for similar U.S. dollar denominated credit facilities for such alternative benchmarks and adjustments (such rate being referred to as the “Replacement Rate”) and the Bank shall promptly provide written notice amending this Note and any other relevant Loan Documents (the “Amendment”) to reflect such alternate rate of interest and such other related changes to this Note (including without limitation changes with respect to the applicable Margin) as may be necessary or appropriate in the opinion of the Bank to effect the provisions of this paragraph and to achieve a final all-in interest rate substantially similar as of the Effective Date of the Amendment to that in effect prior to the occurrence of the event set forth above (collectively, “Replacement Rate Conforming Changes”). The Amendment shall become effective upon the date specified in the notice (the “Effective Date”); provided, however, that if the Borrower objects to such Amendment by notice to the Bank given with five (5) Business Days after receipt of such Amendment from the Bank then (unless and until the Bank and the Borrower otherwise mutually agree upon the Replacement Rate and the terms of the Amendment reflecting the same), the LIBOR Rate shall mean the Base Rate (hereinafter defined) minus two and seventy five hundredths percent (2.75%) per annum, which rate shall become effective at the beginning of the next Interest Period; provided, further however, if the Leverage Ratio described above is at (a) Level 1 the interest rate payable hereunder shall never be less than 1.00%; or (b) Level 2 the interest rate payable hereunder shall never be less than 1.25%. No replacement of LIBOR (or other rate) with a Replacement Rate pursuant to this paragraph shall occur prior to the effective date for such Amendment.
The Replacement Rate shall specify that in no event shall such Replacement Rate be less than the floor in the Index as provided above. Such Replacement Rate and Replacement Rate Conforming Changes shall be applied in a manner consistent with market practice; provided that, in each case, to the extent such market practice is not administratively feasible for the Bank, such Replacement Rate and Replacement Rate Conforming Changes shall be applied as otherwise reasonably determined by Bank.
The undersigned hereby indemnifies the Bank and holds the Bank harmless from any loss or expense which Bank may sustain in accordance with the Loan Agreement.
"Change in Law" shall mean the adoption of any law, rule, regulation, policy, guideline or directive (whether or not having the force of law) or any change therein or in the interpretation or application thereof, in all cases by any Governmental Authority having jurisdiction over the Bank, in each case after the date hereof.
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"Governmental Authority" shall mean any nation or government, any state or other political subdivision thereof and any entity exercising regulatory functions of or pertaining to government.
Until the Termination Date, subject to Section 8.9 of the Loan Agreement, the Maker may borrow, repay and reborrow the principal amount of this Note.
This Note is unsecured.
All installments of interest, and the principal hereof, are payable at the office of First Horizon Bank, 701 Market Street, Chattanooga, Tennessee, or at such other place as the holder may designate in writing, in lawful money of the United States of America, which shall be legal tender in payment of all debts and dues, public and private, at the time of payment.
Any amounts not paid when due hereunder (whether by acceleration or otherwise and subject to applicable grace periods) shall bear interest after maturity at the lesser of (a) the Bank’s Base Rate plus three percent (3%) per annum or (b) the Maximum Rate (the "Default Rate"). For purposes hereof, the Base Rate shall mean that rate announced by Bank from time to time as Bank's “base rate” and shall not necessarily be the lowest or best rate charged by Bank.
For any payment which is not made within ten (10) days of the due date for such payment, the Borrower shall pay a late fee, including without limitation loans which are renewed more than ten (10) days after the due date even though the renewal may be dated as of the past-due payment date. The late fee shall equal five percent (5%) of the unpaid portion of the past-due payment.
If an Event of Default shall have occurred and be continuing (subject to applicable cure periods), all after the Bank mails written notice of such Event of Default to the Maker, then, in any of such events, the entire unpaid principal balance of the indebtedness evidenced hereby together with all interest then accrued, shall, at the absolute option of the Bank, at once become due and payable, without demand or notice, the same being expressly waived. Notwithstanding the foregoing, upon the maturity date of this Note set forth on page one of this Note, no notice or cure period shall be required.
If this Note is placed in the hands of an attorney for collection, by suit or otherwise, or to protect the security for its payment, or to enforce its collection, or to represent the rights of the Bank in connection with any loan documentation executed in connection herewith, or to defend successfully against any claim, cause of action or suit brought by the Maker against the Bank, the Maker shall pay on demand all costs of collection and litigation (including court costs), together with a reasonable attorney's fee all in accordance with the Loan Agreement.
The Maker and any endorsers or guarantors hereof waive protest, demand, presentment, and notice of dishonor, and agree that this Note may be extended, in whole or in part, without limit as to the number of such extensions or the period or periods thereof, without notice to them and without affecting their liability hereon.
It is the intention of the Bank and the Maker to comply strictly with applicable usury laws; and, accordingly, in no event and upon no contingency shall the Bank ever be entitled to receive,
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collect, or apply as interest any interest, fees, charges or other payments equivalent to interest, in excess of the maximum rate which the Bank may lawfully charge under applicable statutes and laws from time to time in effect; and in the event that the holder hereof ever receives, collects, or applies as interest any such excess, such amount which, but for this provision, would be excessive interest, shall be applied to the reduction of the principal amount of the indebtedness hereby evidenced; and if the principal amount of the indebtedness evidenced hereby, and all lawful interest thereon, is paid in full, any remaining excess shall forthwith be paid to the Maker, or other party lawfully entitled thereto. In determining whether or not the interest paid or payable, under any specific contingency, exceeds the highest rate which Bank may lawfully charge under applicable law from time to time in effect, the Maker and the Bank shall, to the maximum extent permitted under applicable law, characterize any non-principal payment as a reasonable loan charge, rather than as interest. Any provision hereof, or of any other agreement between the Bank and the Maker, that operates to bind, obligate, or compel the Maker to pay interest in excess of such maximum rate shall be construed to require the payment of the maximum rate only. The provisions of this paragraph shall be given precedence over any other provision contained herein or in any other agreement between the Bank and the Maker that is in conflict with the provisions of this paragraph.
This Note shall be governed and construed according to the statutes and laws of the State of Tennessee from time to time in effect, except to the extent that Section 85 of Title 12 of the United States Code (or other applicable federal statue) may permit the charging of a higher rate of interest than applicable state law, in which event such applicable federal statute, as amended and supplemented from time to time shall govern and control the maximum rate of interest permitted to be charged hereunder; it being intended that, as to the maximum rate of interest which may be charged, received, and collected hereunder, those applicable statutes and laws, whether state or federal, from time to time in effect, which permit the charging of a higher rate of interest, shall govern and control; provided, always, however, that in no event and under no circumstances shall the Maker be liable for the payment of interest in excess of the maximum rate permitted by such applicable law, from time to time in effect.
This Note evidences the same indebtedness as evidenced by the Existing Note. This Note is an amendment to and replacement of the Existing Note. The execution and delivery of this Note does not constitute payment, cancellation, satisfaction, discharge, release or novation of the Existing Note.
(Signature on next page)
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The Maker may prepay this Note in whole or in part, prior to maturity, without premium or penalty.
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MILLER INDUSTRIES, INC. By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Executive Vice President, Chief Financial Officer and Treasurer |
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APACO, INC. By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Vice President |
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CHAMPION CARRIER CORPORATION By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Vice President |
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MILLER/GREENEVILLE, INC. By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Vice President |
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(Signatures Continued on Next Page)
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MILLER FINANCIAL SERVICES GROUP, INC., successor by name change to Miller Industries Distributing, Inc. By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Vice President, Treasurer and Assistant Secretary MILLER INDUSTRIES INTERNATIONAL, INC. By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Vice President |
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MILLER INDUSTRIES TOWING EQUIPMENT INC. By: /s/ Deborah L. Whitmire Name: Deborah L. Whitmire Title: Vice President |
STATE OF TENNESSEE
COUNTY OF HAMILTON
Personally appeared before me, Nadine L. Hancock, a Notary Public in and for said State and County duly commissioned and qualified, Deborah L. Whitmire, with whom I am personally acquainted, and who acknowledged that she executed the within instrument for the purposes therein contained, and who further acknowledged that she is an authorized officer of Miller Industries, Inc., APACO, Inc., Champion Carrier Corporation, Miller/Greeneville, Inc., Miller Financial Services Group, Inc., Miller Industries International, Inc. and Miller Industries Towing Equipment Inc. (singularly and collectively, the "Borrower") and is authorized by the Borrower to execute this instrument on behalf of each Borrower.
WITNESS my hand, at office, this 20th day of December, 2020.
/s/ Nadine L. Hancock
Notary Public
My Commission Expires: 09/25/2001
(Notary Seal)
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