AMERCO
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SERIES B PREFERRED STOCK PURCHASE AGREEMENT
August 30, 1996
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TABLE OF CONTENTS
Page No.
ARTICLE I.
DESCRIPTION OF TRANSACTION.................................1
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1.1 Description of Securities........................1
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1.2 Purchase of Series B Preferred...................1
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1.3 Closing..........................................1
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ARTICLE II.
Representations and Warranties of the Corporation..........1
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2.1 Corporate Existence..............................1
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2.2 Corporate Authority..............................2
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2.3 Financial Statements.............................2
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2.4 Corporate Action; No Breach......................2
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2.5 Operation of Business............................2
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2.6 Litigation and Judgments.........................3
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2.7 Enforceability...................................3
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2.8 Approvals........................................3
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2.9 Debt.............................................3
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2.10 Rating...........................................3
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2.11 Taxes............................................3
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2.12 Margin Securities................................4
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2.13 ERISA............................................4
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2.14 Disclosure.......................................4
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2.15 Capitalization...................................4
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2.16 Agreements.......................................5
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2.17 Compliance with Laws.............................5
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2.18 Investment Company Act...........................5
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2.19 Public Utility Holding Company Act..............5
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2.20 Environmental Matters............................5
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2.21 Labor Disputes and Acts of God...................6
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ARTICLE III.
Representations and Warranties of the Holder...............7
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3.1 Organization and Good Standing...................7
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3.2 Authorization....................................7
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3.3 Enforceability...................................7
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3.4 Accredited Investor..............................7
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3.5 Investment.......................................7
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3.6 Access to Data...................................7
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ARTICLE IV.
Positive Covenants.........................................7
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4.1 Existence; Business and Properties...............8
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4.2 Insurance........................................8
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4.3 Obligations and Taxes............................8
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4.4 Financial Statements, Reports, etc...............8
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4.5 ERISA...........................................11
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4.6 Maintaining Records: Access to Properties and
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Inspections.....................................12
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4.7 Use of Proceeds.................................12
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4.8 Ownership and Operation of Picacho..............12
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4.9 Further Assurances..............................12
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4.10 Compliance with Other Instruments...............12
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4.11 Further Assurances Regarding Conversion.........13
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ARTICLE V.
Conditions to Closing of Holder...........................13
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5.1 Representations and Warranties Correct..........13
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5.2 Covenants.......................................13
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5.3 Certificates of Designation.....................13
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5.4 Delivery of Documents...........................13
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5.5 Closing of Loan Agreement.......................14
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5.6 Legal Matters...................................14
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ARTICLE VI.
Conditions to Closing of Corporation......................14
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6.1 Representations and Warranties Correct..........14
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6.2 Covenants.......................................14
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6.3 Officers' Certificate...........................14
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6.4 Legal Matters...................................14
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ARTICLE VII.
Registration Rights.......................................14
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7.1 Required Registrations..........................14
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7.2 Form S-3........................................15
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7.3 Procedure for Registration......................15
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7.4 Indemnification.................................16
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7.5 Rule 144 Requirements...........................17
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7.6 Obligations in a Registration...................17
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7.7 Limitations on Subsequent Registration Rights...17
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ARTICLE VIII.
Definitions...............................................18
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8.1 Definitions.....................................18
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8.2 Other Definitional Provisions...................23
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8.3 Accounting Terms and Determinations.............24
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ARTICLE IX.
Miscellaneous.............................................24
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9.1 Expenses........................................24
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9.2 Indemnification.................................25
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9.3 Limitation of Liability.........................25
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9.4 No Duty.........................................26
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9.5 Equitable Relief................................26
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9.6 No Waiver; Cumulative Remedies..................26
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9.7 Successors and Assigns..........................26
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9.8 Survival........................................26
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9.9 ENTIRE AGREEMENT................................26
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9.10 Notices.........................................27
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9.11 Governing Law; Submission to Jurisdiction; Service
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of Process......................................27
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9.12 Counterparts....................................27
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9.13 Severability....................................27
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9.14 Headings........................................28
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9.15 Construction....................................28
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9.16 Independence of Covenants.......................28
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9.17 WAIVER OF JURY TRIAL............................28
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List of Attachments:
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Exhibit A - Certificate of Designation for Series B Preferred Stock
Exhibit B - Certificate of Designation for Series C Common Stock
Exhibit C - Form of Note
AMERCO
SERIES B PREFERRED STOCK
PURCHASE AGREEMENT
AMERCO, a Nevada corporation (the "Corporation"), and Blue
Ridge Investments, LLC, a Delaware limited liability company,
enter into this Agreement dated as of August 30, 1996, relating
to the issuance by the Corporation of certain of its securities.
Certain capitalized terms used in this Agreement are defined in
Article 8.
ARTICLE I.
DESCRIPTION OF TRANSACTION
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1.1 Description of Securities. The securities to be issued
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pursuant to this Agreement are the Series B Preferred Stock, no par value
(the "Series B Preferred"), of the Corporation. The Series B
Preferred will be convertible, at the Holder's option, into
either shares of the Corporation's Series B Common Stock, $.25
par value per share (the "Series B Common Stock") or all of the
outstanding shares of Picacho, as provided in the Certificate of
Designation. Any securities of the Corporation issued or
issuable upon conversion of the Series B Preferred are referred
to as "Conversion Shares."
1.2 Purchase of Series B Preferred. The Corporation agrees
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to issue to the Holder and the Holder agrees to purchase from the
Corporation, a total of 100,000 shares of its authorized but
unissued Series B Preferred for a total purchase price of
$100,000,000.
1.3 Closing. The closing (the "Closing") of the purchase
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and sale of the Series B Preferred will take place at 9:00 a.m.,
local time, on the date (the "Closing Date") of execution of this
Agreement, at the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇, One Arizona Center,
Phoenix, Arizona, or at such other date and place as agreed to by
the parties. At the Closing, the Corporation will deliver to the
Holder a certificate registered in the name of the Holder or its
nominee representing the Series B Preferred, upon delivery by the
Holder of (i) payment of $40,000,000 by wire or other transfer;
and (ii) a promissory note in the principal amount of $60,000,000
in the form attached as Exhibit C.
ARTICLE II.
Representations and Warranties of the Corporation
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The Corporation represents and warrants to the Holder that:
2.1 Corporate Existence. The Corporation and each of its
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Subsidiaries (a) is a corporation duly organized, validly
existing, and in good standing under the laws of the jurisdiction
of its incorporation; (b) has all requisite corporate power and
authority to own its assets and carry on its business as now
being or as proposed to be conducted; and (c) is qualified to do
business and in good standing in all jurisdictions in which the
nature of its business makes such qualification necessary.
2.2 Corporate Authority. The Corporation has the corporate
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power and authority and legal right to execute, deliver, and
perform its obligations under this Agreement and the other
Transaction Documents to which it is or may become a party.
2.3 Financial Statements. The Corporation has delivered to
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the Holder the Corporation's Form 10-K, which contains audited
consolidated financial statements of the Corporation and its
Subsidiaries as at and for the fiscal year ended March 31, 1996,
and has delivered to the Holder unaudited consolidated and
consolidating financial statements of the Corporation and its
Subsidiaries for the three-month period ended June 30, 1996.
Such financial statements are complete and correct, have been
prepared in accordance with GAAP, and fairly and accurately
present, on a consolidated and consolidating basis, the financial
condition of the Corporation and its Subsidiaries as of the
respective dates indicated therein and the results of operations
for the respective periods indicated therein subject, in the case
of the unaudited interim financial statements, to changes
resulting from normal year-end adjustments (none of which would,
either alone or in the aggregate, be materially adverse to the
financial condition or operating results of the Corporation).
Neither the Corporation nor any of its Subsidiaries has any
material contingent liabilities, liabilities for taxes, unusual
forward or long-term commitments, or unrealized or anticipated
losses from any unfavorable commitments except as referred to or
reflected in such financial statements. There has been no
material adverse change in the business, condition (financial or
otherwise), operations, prospects, or Properties of the
Corporation or any of its Subsidiaries since the date of the most
recent financial statements referred to in this Section.
2.4 Corporate Action; No Breach. The execution, delivery,
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and performance by the Corporation of this Agreement and the
other Transaction Documents to which either the Corporation or
Picacho is or may become a party and compliance with the terms
and provisions hereof and thereof have been duly authorized by
all requisite corporate action on the part of the Corporation and
Picacho and do not and will not (a) violate or conflict with, or
result in a breach of, or require any consent under (i) the
articles of incorporation or bylaws of the Corporation or any of
the Subsidiaries, (ii) any applicable law, rule, or regulation or
any order, writ, injunction, or decree of any Governmental
Authority or arbitrator, or (iii) any agreement or instrument to
which the Corporation or any of the Subsidiaries is a party or by
which any of them or any of their Property is bound or subject,
or (b) constitute a default under any such agreement or
instrument, or result in the creation or imposition of any Lien
upon any of the revenues or Property of the Corporation or any
Subsidiary.
2.5 Operation of Business. The Corporation and each of its
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Subsidiaries possess all licenses, permits, franchises, patents,
copyrights, trademarks, and tradenames, or rights thereto,
necessary to conduct their respective businesses substantially as
now conducted and as presently proposed to be conducted, and the
Corporation and each of its Subsidiaries are not in violation of
any valid rights of others with respect to any of the foregoing.
2.6 Litigation and Judgments. Except as disclosed in the
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Form 10-K, there is no action, suit, investigation, or
proceeding before or by any Governmental Authority or arbitrator
pending, or to the knowledge of the Corporation, threatened
against or affecting the Corporation or any Subsidiary, that
would, if adversely determined, have a Material Adverse Effect.
There are no outstanding judgments against the Corporation or any
Subsidiary.
2.7 Enforceability. This Agreement constitutes, and the
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other Transaction Documents to which the Corporation is party,
when delivered, shall constitute the legal, valid, and binding
obligations of the Corporation, enforceable against the
Corporation in accordance with their respective terms, except as
limited by bankruptcy, insolvency, or other laws of general
application. The Series B Preferred, when issued in compliance
with the provisions of this Agreement, will be validly issued,
will be fully paid and nonassessable, and will have the rights,
preferences, and privileges described in Exhibit A. Series B
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Common Stock issuable upon conversion of the Series B Preferred
has been duly and validly reserved for issuance and, when issued
in compliance with the provisions of this Agreement and Exhibit
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A, will be validly issued, will be fully paid and nonassessable
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and will have the rights, preferences and privileges described in
EXHIBIT B; and the Series B Preferred and such shares of Series B
Common Stock will be free of any Liens, other than as set forth
in this Agreement, and any Liens created by or imposed upon the
holders as the result of the general application of federal or
state securities laws. The shares of Series B Common Stock
issuable upon conversion of the Series B Preferred are not
subject to any preemptive or similar rights or rights of first
refusal, except as set forth in this Agreement.
2.8 Approvals. No authorization, approval, or consent of,
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and no filing or registration with, any Governmental Authority or
third party is or will be necessary for the execution, delivery,
or performance by the Corporation and Picacho of this Agreement
and the other Transaction Documents to which either the
Corporation or Picacho is or may become a party or for the
validity or enforceability thereof.
2.9 Debt. The Corporation and its Subsidiaries have no
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Debt, except as reflected in the financial statements described
in Section 2.3 or incurred in the ordinary course of business
after the date of those financial statements.
2.10 Rating. The Company's senior unsecured debt is
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rated BBB- or higher by Standard & Poor's Corporation.
2.11 Taxes. The Corporation and each Subsidiary have
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filed all tax returns (federal, state, and local) required to be
filed, including all income, franchise, employment, property, and
sales tax returns, and have paid all of their respective
liabilities for taxes, assessments, governmental charges, and
other levies that are due and payable. The Corporation knows of
no pending investigation of the Corporation or any Subsidiary by
any taxing authority or of any pending but unassessed tax
liability of the Corporation or any Subsidiary. The federal
income tax liability of the Corporation and its Subsidiaries has
been audited by the Internal Revenue Service and has been finally
determined and satisfied for all taxable years up to and
including the taxable year ended March 31, 1993.
2.12 Margin Securities. Neither the Corporation nor
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any Subsidiary is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose
of purchasing or carrying margin stock (within the meaning of
Regulations G, T, U, or X of the Board of Governors of the
Federal Reserve System), and no part of the purchase price for
the Series B Preferred will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of
purchasing or carrying margin stock.
2.13 ERISA. The Corporation and each Subsidiary are in
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compliance in all material respects with all applicable
provisions of ERISA. Neither a Reportable Event nor a Prohibited
Transaction has occurred and is continuing with respect to any
Plan. No notice of intent to terminate a Plan has been filed,
nor has any Plan been terminated. No circumstances exist which
constitute grounds entitling the PBGC to institute proceedings to
terminate, or appoint a trustee to administer, a Plan, nor has
the PBGC instituted any such proceedings. Neither the
Corporation nor any ERISA Affiliate has completely or partially
withdrawn from a Multiemployer Plan. The Corporation and each
ERISA Affiliate have met their minimum funding requirements under
ERISA with respect to all of their Plans, and the present value
of all vested benefits under each Plan do not exceed the fair
market value of all Plan assets allocable to such benefits, as
determined on the most recent valuation date of the Plan and in
accordance with ERISA. Neither the Corporation nor any ERISA
Affiliate has incurred any liability to the PBGC under ERISA.
2.14 Disclosure. No statement, information, report,
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representation, or warranty made by the Corporation in this
Agreement in any other Transaction Document or any of the
Corporation's filings with the Securities and Exchange Commission
since March 31, 1996, or furnished to the Holder in connection
with this Agreement or any transaction contemplated hereby
contains any untrue statement of a material fact or omits to
state any material fact necessary to make the statements herein
or therein not misleading. There is no fact known to the
Corporation which has had a Material Adverse Effect, or which
might in the future have a Material Adverse Effect that has not
been disclosed to the Holder.
2.15 Capitalization.
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(a) The authorized, issued and outstanding Capital
Stock of the Corporation is as described in the financial
statements of the Corporation delivered to the Holder pursuant to
Section 2.3.
(b) The Corporation has no material Subsidiaries other
than Picacho and those listed in Exhibit 21 to the Form 10-K,
which sets forth the jurisdiction of incorporation of each
Subsidiary and the ownership of the outstanding Capital Stock of
each Subsidiary. The Corporation or its Subsidiaries own all of
the outstanding shares of Capital Stock of each of the
Subsidiaries of record and beneficially, free and clear of all
Liens.
(c) All of the outstanding equity securities of the
Corporation and its Subsidiaries have been validly issued, are
fully paid, and are nonassessable (except for the shares of
capital stock of Oxford Life Insurance Company and Republic
Western Insurance Company that are further assessable to the
extent of their respective par values, in accordance with Article
14, Section 11 of the Constitution of the State of Arizona) and
have not been issued in violation of any preemptive rights.
There are no outstanding subscriptions, options, warrants, calls,
or rights (including preemptive rights) to acquire, and no
outstanding securities or instruments convertible into, Capital
Stock of the Corporation or any of its Subsidiaries, except that
▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ have certain limited rights to
exchange their shares of Common Stock for other classes of the
Corporation's stock pursuant to certain Share Repurchase and
Registration Rights Agreements dated as of March 1, 1992 and May
1, 1992, and except that the Holder has certain rights under the
Registration Rights Agreement dated the same date as this
Agreement.
2.16 Agreements. Neither the Corporation nor any
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Subsidiary is a party to any indenture, loan, or credit
agreement, or to any lease or other agreement or instrument, or
subject to any charter or corporate restriction that could have a
Material Adverse Effect. Neither the Corporation nor any
Subsidiary is in default in any respect in the performance,
observance, or fulfillment of any of the obligations, covenants,
or conditions contained in any agreement or instrument material
to its business to which it is a party.
2.17 Compliance with Laws. Neither the Corporation nor
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any Subsidiary is in violation in any material respect of any
law, rule, regulation, order, or decree of any Governmental
Authority or arbitrator.
2.18 Investment Company Act. Neither the Corporation
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nor any Subsidiary is an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
2.19 Public Utility Holding Company Act. Neither the
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Corporation nor any Subsidiary is a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" of
a "holding company" or a "public utility" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
2.20 Environmental Matters.
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(a) Except as specifically disclosed in the Form 10-K
and except for instances of noncompliance with or exceptions to
the following that could not have, individually or in the
aggregate, a Material Adverse Effect:
(i) The Corporation, each Subsidiary, and all of
their respective Properties and operations are in full compliance
with all Environmental Laws. The Corporation is not aware of,
nor has the Corporation received notice of, any past, present, or
future conditions, events, activities, practices, or incidents
which may interfere with or prevent the compliance or continued
compliance of the Corporation and the Subsidiaries with all
Environmental Laws;
(ii) The Corporation and each Subsidiary have
obtained all permits, licenses, and authorizations that are
required under applicable Environmental Laws, and all such
permits, licenses, and authorizations are in good standing and
the Corporation and its Subsidiaries are in compliance with all
of the terms and conditions thereof;
(iii) No Hazardous Materials exist on, about,
or within or have been used, generated, stored, transported,
disposed of on, or Released from any of the Properties of the
Corporation or any Subsidiary except in compliance with
applicable Environmental Laws. The use which the Corporation and
the Subsidiaries make and intend to make of their respective
Properties will not result in the use, generation, storage,
transportation, accumulation, disposal, or Release of any
Hazardous Material on, in, or from any of their Properties except
in compliance with applicable Environmental Laws;
(iv) Neither the Corporation nor any of its
Subsidiaries nor any of their respective currently or previously
owned or leased Properties or operations is subject to any
outstanding or, to the best of the Corporation's knowledge,
threatened order from or agreement with any Governmental
Authority or other Person or subject to any judicial or
administrative proceeding with respect to (i) failure to comply
with Environmental Laws, (ii) Remedial Action, or (iii) any
Environmental Liabilities;
(v) There are no conditions or circumstances
associated with the currently or previously owned or leased
Properties or operations of the Corporation or any of its
Subsidiaries that could reasonably be expected to give rise to
any Environmental Liabilities. Neither the Corporation nor any
of its Subsidiaries is subject to any Environmental Liabilities;
(vi) Neither the Corporation nor any of its
Subsidiaries is a treatment, storage, or disposal facility
requiring a permit under the Resource Conservation and Recovery
Act, 42 U.S.C. section 6901 et seq., regulations thereunder or any
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comparable provision of state law. The Corporation and its
Subsidiaries are compliance with all applicable financial
responsibility requirements of all Environmental Laws; and
(vii) Neither the Corporation nor any of its
Subsidiaries has filed or failed to file any notice required
under applicable Environmental Law reporting a Release.
(b) No Lien arising under any Environmental Law has
attached to any Property or revenues of the Corporation or its
Subsidiaries.
2.21 Labor Disputes and Acts of God. Since March 31,
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1996, neither the business nor the Properties of the Corporation
or any Subsidiary have been affected by any fire, explosion,
accident, strike, lockout, or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public
enemy, or other casualty (whether or not covered by insurance)
that is having or could have a Material Adverse Effect.
ARTICLE III.
Representations and Warranties of the Holder
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The Holder hereby jointly represents and warrants to the
Corporation that the following are true and correct as of the
date hereof:
3.1 Organization and Good Standing. The Holder has all
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requisite power and authority to execute and deliver this
Agreement and to carry out and perform its obligations hereunder.
3.2 Authorization. The execution, delivery and
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performance of this Agreement have been duly authorized by all
necessary action on the part of the Holder.
3.3 Enforceability. This Agreement constitutes the
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legal, valid and binding obligation of the Holder, enforceable
against the Holder in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general
application.
3.4 Accredited Investor. (a) It is an accredited
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investor as defined under Regulation D under the Securities Act
and (b) by reason of its own business and financial experience
and that of those Persons, if any, retained by it to advise it
with respect to its investment, it together with such advisors
has such knowledge, sophistication and experience in business and
financial matters so that it is capable of evaluating the merits
and risks of its investment in the Corporation and has the
capacity to protect its own interests.
3.5 Investment. It is acquiring the Series B
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Preferred and the stock into which the Series B Preferred is
convertible for investment for its own account, not as a nominee
or agent, and not with the view to, or for resale in connection
with, any "distribution." It understands that the Series B
Preferred to be purchased, and the stock into which the Series B
Preferred is convertible, have not been registered under the
Securities Act or any state securities laws by reason of specific
exemptions from the registration provisions of the Securities Act
and any applicable state securities laws, the availability of
which depend upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Holder's
representations as expressed herein.
3.6 Access to Data. It has had an opportunity to
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discuss the Corporation's business, management and financial
affairs with its management and the opportunity to review the
Corporation's facilities and business plan.
ARTICLE IV.
Positive Covenants
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The Corporation covenants and agrees that, as long as the
Series B Preferred, or any of the shares obtained upon conversion
of the Series B Preferred, are held by the Holder, any Affiliate
of the Holder or any Person to whom the Holder has assigned its
rights under this Agreement, the Corporation will, and will cause
each of its Subsidiaries to:
4.1 Existence; Business and Properties.
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(a) Do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal
existence and to prevent a Change of Control.
(b) Do or cause to be done all things necessary to
obtain, preserve, renew, extend and keep in full force and effect
the rights, licenses, permits, franchises, authorizations,
patents, copyrights, trademarks and trade names material to the
conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and
operated; comply in all material respects with all applicable
laws, rules, regulations and orders of any Governmental
Authority, whether now in effect or hereafter enacted; and at all
times maintain and preserve all Property material to the conduct
of such business and keep such Property in good repair, working
order and condition and from time to time make, or cause to be
made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the
business carried on in connection therewith may be properly
conducted at all times.
4.2 Insurance. Keep its insurable properties adequately
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insured at all times by financially sound and reputable insurers;
maintain such other insurance, to such extent and against such
risks, including fire and other risks insured against by extended
coverage, as is customary with companies in the same or similar
businesses, including public liability insurance against claims
for personal injury or death or property damage occurring upon,
in, about or in connection with the use of any Properties owned,
occupied or controlled by it; and maintain such other insurance
as may be required by law.
4.3 Obligations and Taxes. Pay its debts and other
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obligations promptly and in accordance with their terms and pay
and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income
or profits or in respect of its Property, before the same shall
become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise which, if unpaid,
might give rise to a Lien upon such Properties or any part
thereof; provided, however, that such payment and discharge shall
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not be required with respect to any such tax, assessment, charge,
levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the
Corporation or such Subsidiary of the Corporation shall have set
aside on its respective books adequate reserves with respect
thereto.
4.4 Financial Statements, Reports, etc. In the case of the
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Corporation, furnish to the Holder:
(a) (i) as soon as practicable and in any event
within 60 days after the end of each fiscal quarter, consolidated
balance sheets of the Corporation and its Subsidiaries, as at the
end of such period, and the related consolidated statements of
income, stockholders' equity and cash flows for such fiscal
quarter, setting forth in each case in comparative form the
consolidated figures for the corresponding periods of the
previous fiscal year, all in reasonable detail and certified by a
Financial Officer of the Corporation that they fairly present the
financial condition of the Corporation and its Subsidiaries as at
the date indicated and the results of their operations and
changes in their financial position for the periods indicated,
subject to changes resulting from audit and normal year-end
adjustment;
(ii) as soon as practicable and in any event
within 60 days after the end of each fiscal quarter, balance
sheets of the Corporation and the Non-Insurance Subsidiaries and
balance sheets of the Insurance Subsidiaries, each as at the end
of such period, and the related statements of income,
stockholders' equity and cash flows for such fiscal quarter,
setting forth in each case in comparative form the figures for
the corresponding periods of the previous fiscal year, together
with the consolidating intercompany eliminations and adjustments,
all in reasonable detail, and certified by a Financial Officer of
the Corporation that they fairly present the financial condition
of the Corporation and the Non-Insurance Subsidiaries and the
Insurance Subsidiaries, respectively, as at the date indicated
and the results of their operations and changes in their
financial position for the periods indicated, subject to changes
resulting from audit and normal year-end adjustment;
(b) (i) as soon as practicable and in any event
within 120 days after the end of each fiscal year of the
Corporation, consolidated balance sheets of the Corporation and
its Subsidiaries, as at the end of such year, and the related
consolidated statements of income, stockholders' equity and cash
flows for such fiscal year, setting forth in each case, in
comparative form the consolidated figures for the previous year,
all in reasonable detail and accompanied by a report thereon of
Price Waterhouse LLP or other independent certified public
accountants of recognized national standing selected by the
Corporation and reasonably satisfactory to the Holder, which
report shall be unqualified as to going concern and scope of
audit and shall state that such consolidated financial statements
present fairly, in all material respects, the financial position
of the Corporation and its Subsidiaries; as at the dates
indicated, and the results of their operations and cash flows for
the periods indicated in conformity with GAAP (applied on a basis
consistent with prior years unless as otherwise stated therein)
and that the examination by such accountants in connection with
such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(ii) as soon as practicable and in any event
within 120 days after the end of each fiscal year of the
Corporation, balance sheets of the Corporation and the Non-
Insurance Subsidiaries and balance sheets of the Insurance
Subsidiaries, each as at the end of such year, and the related
statements of income, stockholders' equity and cash flows for
such fiscal year, setting forth in each case in comparative form
the figures for the previous year, together with the
consolidating intercompany eliminations and adjustments, all in
reasonable detail and accompanied by a report thereon of Price
Waterhouse LLP or other independent certified public accountants
of recognized national standing selected by the Corporation and
reasonably satisfactory to the Holder, which report shall state
that the balance sheets of the Corporation and the Non-Insurance
Subsidiaries and balance sheets of the Insurance Subsidiaries and
the related statements of income, stockholders' equity and cash
flows, together with consolidating intercompany eliminations and
adjustments, were subjected to the auditing procedures applied in
the examination of the consolidated financial statements referred
to in Section 4.4(b)(i) and are fairly stated in all material
respects in relation to the consolidated financial statements
taken as a whole;
(c) together with each delivery of financial
statements of the Corporation and its Subsidiaries pursuant to
Sections 4.4(a) and (b) above, (i) a certificate of a Financial
Officer stating that the signer thereof has reviewed the terms of
this Agreement and the other Transaction Documents and has made,
or caused to be made under his supervision, a review in
reasonable detail of the transactions and condition of the
Corporation and its Subsidiaries during the accounting period
covered by such financial statements and that such review has not
disclosed the existence during or at the end of such accounting
period, and that the signer does not have knowledge of the
existence as at the date of such certificate, of any condition or
event which constitutes an Event of Noncompliance, or, if any
such condition or event existed or exists, specifying the nature
and period of existence thereof and what action the Corporation
has taken, is taking and proposes to take with respect thereto;
(d) promptly upon receipt thereof, copies of all
reports submitted to the Corporation by independent public
accountants in connection with each annual, interim or special
audit of the financial statements of the Corporation made by such
accountants, including any comment letter submitted by such
accountants to management in connection with their annual audit;
(e) promptly upon their becoming available, copies of
all (i) financial statements, reports, notices and proxy
statements sent or made available generally by the Corporation to
its security holders or by any of its Subsidiaries to its
security holders other than the Corporation or another of its
Subsidiaries, and (ii) regular and periodic reports and all
registration statements and prospectuses, if any, filed by the
Corporation or any of its Subsidiaries with any securities
exchange or with the Commission or any Governmental Authority
succeeding to any of its functions;
(f) promptly upon any officer of the Corporation
obtaining knowledge (i) of any condition or event which
constitutes an Event of Noncompliance, (ii) that any Person has
given any notice to the Corporation or any of its Subsidiaries or
taken any other action with respect to a claimed default or event
of default under or breach of any instrument reflecting a Debt of
the Corporation or any of its Subsidiaries in a principal amount
in excess of $10,000,000, or (iii) of any condition or event that
might have a Material Adverse Effect, a certificate of a
Financial Officer specifying the nature and period of existence
of any such condition or event, or specifying the notice given or
action taken by such holder or Person and the nature of such
claimed default, Event of Noncompliance, event or condition, and
what action the Corporation has taken, is taking and proposes to
take with respect thereto;
(g) promptly upon any officer of the Corporation
obtaining knowledge of (i) the institution of, or threat of any
action, suit, proceeding, governmental investigation or
arbitration against or affecting the Corporation or any of its
Subsidiaries or any property of the Corporation or any of its
Subsidiaries not previously disclosed by the Corporation to the
Holder, or (ii) any material development in any action, suit,
proceeding, governmental investigation or arbitration, which, in
either case, if adversely determined, might have a Material
Adverse Effect, the Corporation shall promptly give notice
thereof to the Holder and provide such other information as may
be reasonably available to it to enable the Holder and its
counsel to evaluate such matters;
(h) promptly upon their becoming available, copies of
the annual, quarterly and other regular periodic reports which
each Insurance Subsidiary is required to submit to the insurance
commissioner of the State of Arizona or other Governmental
Authorities;
(i) with reasonable promptness after the execution
thereof, copies of all agreements (and in the case of commercial
paper, notes or medium-term notes issued by the Corporation, the
forms of such notes) evidencing any Debt of the Corporation or
any of its Subsidiaries in an amount of $10,000,000 or more and
of any amendments to or waivers under any such agreement;
(j) promptly upon the occurrence thereof, a written
notice, in reasonable detail, of any purchase by the Corporation
of (i) capital stock of the Corporation in an amount of
$5,000,000 or more in any one transaction or in an aggregate
amount of $7,500,000 or more in any one fiscal year or (ii) any
purchase or redemption of any preferred stock of the Corporation
in an aggregate amount of $7,500,000 or more in any one fiscal
year;
(k) with reasonable promptness, such other information
and data with respect to the Corporation or any of its
Subsidiaries as from time to time may be reasonably requested by
the Holder; and
(l) promptly upon the occurrence thereof, and in any
event within five days, notice of a Change of Control, and, as
promptly thereafter as possible, such information as may be
reasonably available to the Corporation to enable the Holder and
its counsel to evaluate such matter.
4.5 ERISA. (a) With regard to each Plan and Multiemployer
-----
Plan, comply in all material respects with the applicable
provisions of ERISA and the Code and (b) furnish to the Holder
(i) as soon as possible, and in any event within 30 days after
any officer of the Corporation or any ERISA Affiliate either
knows or has reason to know that any Reportable Event has
occurred that alone or together with any other Reportable Event
could reasonably be expected to result in liability of the
Corporation to the PBGC in an aggregate amount exceeding
$1,000,000, a statement of a Financial Officer setting forth
details as to such Reportable Event and the action proposed to be
taken with respect thereto, together with a copy of the notice,
if any, of such Reportable Event given to the PBGC, (ii) promptly
after receipt thereof, a copy of any notice the Corporation or
any ERISA Affiliate may receive from the PBGC relating to the
intention of the PBGC to terminate any Plan or Plans (other than
a Plan maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section
414 of the Code) or to appoint a trustee to administer any Plan
or Plans, (iii) within 10 days after the due date for filing with
the PBGC pursuant to Section 412(n) of the Code of a notice of
failure to make a required installment or other payment with
respect to a Plan, a statement of a Financial Officer setting
forth details as to such failure and the action proposed to be
taken with respect thereto, together with a copy of such notice
given to the PBGC and (iv) promptly and in any event within 30
days after receipt thereof by the Corporation or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, a copy of
each notice received by the Corporation or any ERISA Affiliate
concerning (A) the imposition of Withdrawal Liability or (B) a
determination that a Multiemployer Plan is, or is expected to be,
terminated or in reorganization, in each case within the meaning
of Title IV of ERISA.
4.6 Maintaining Records: Access to Properties and
-----------------------------------------------------
Inspections. Maintain all financial records in accordance with
-----------
GAAP and permit any representatives designated by the Holder to
visit and inspect the financial records and the properties of the
Corporation or any of its Subsidiaries at reasonable times and as
often as requested and to make extracts from and copies of such
financial records, and permit any representatives designated by
the Holder to discuss the affairs, finances and condition of the
Corporation or any of its Subsidiaries with the officers thereof
and independent accountants therefor.
4.7 Use of Proceeds. The Corporation will use the proceeds
---------------
from the sale of the Series B Preferred exclusively to capitalize
Picacho.
4.8 Ownership and Operation of Picacho. The Corporation
-----------------------------------
will:
(a) at all times own all of the outstanding shares,
and all interest in the revenues, income, assets and business, of
Picacho (except in the event of a conversion of the Series B
Preferred into the shares of Picacho);
(b) cause Picacho to engage in no business or
operations and incur no liabilities or obligations except as
permitted by Picacho's Articles of Incorporation;
(c) cause the Corporation at all times to have
sufficient funds legally available for redemption of all of the
Series B Preferred;
(d) cause Picacho at all times to invest its assets
with an investment manager satisfactory to the Holder;
(e) cause Picacho at all times to maintain a
stockholders' equity of at least $100,000,000; and
(f) cause Picacho to maintain its Articles of
Incorporation and Bylaws in effect as at the date of this
Agreement.
4.9 Further Assurances. Execute and deliver such further
------------------
agreements and instruments and take such further action as may be
requested by the Holder to carry out the provisions and purposes
of this Agreement and the other Transaction Documents and to
create, preserve, and perfect the rights of the Holder under the
Transaction Documents.
4.10 Compliance with Other Instruments. At all times
---------------------------------
comply with all terms, covenants, conditions, agreements and
other obligations contained in any instrument evidencing or
governing a Debt of the Corporation or any of its Subsidiaries in
a principal amount in excess of $10,000,000.
4.11 Further Assurances Regarding Conversion. Take any
---------------------------------------
further action that may be required from time to time to assure
that number of shares of Series B Common Stock authorized and
reserved for issuance upon conversion of the Series B Preferred
is at all times sufficient to permit the conversion of all the
outstanding shares of the Series B Preferred after giving full
effect to all adjustments to the Conversion Price as provided in
Certificate of Designation. Execute and deliver such further
agreements and instruments and take such further action as may be
requested by the Holder to permit or facilitate the conversion of
the Series B Preferred, including filing and using its best
efforts to obtain approval of any listing or similar application
relating to the Series B Common Stock, and the filing and
completion of any notice required by the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976.
ARTICLE V.
Conditions to Closing of Holder
-------------------------------
The Holder's obligations to purchase the Series B Preferred
at the Closing is, at the option of the Holder, subject to the
fulfillment as of the Closing Date of the following conditions:
5.1 Representations and Warranties Correct. The representa
--------------------------------------
tions and warranties made by the Corporation in Section 2 of this
Agreement shall be true and correct in all material respects at
and as of the Closing.
5.2 Covenants. All covenants, agreements and conditions
---------
contained in this Agreement to be performed by the Corporation on
or prior to the Closing Date shall have been performed or
complied with in all material respects.
5.3 Certificates of Designation. The Corporation shall
----------------------------
have filed the Certificates of Designation with the Secretary of
State of Nevada in the forms of Exhibit A and Exhibit B.
--------- ---------
5.4 Delivery of Documents. The Corporation shall have
-----------------------
delivered to the Holder all of the following, in form and
substance satisfactory to the Holder:
(a) Officers' Certificate. A certificate of the
----------------------
Corporation's President and Secretary to the effect that the
conditions referred to in Sections 5.1 through 5.3 have been
satisfied.
(b) Fees and Expenses. Evidence that the fees to
------------------
NationsBanc Capital Markets, Inc. and all other costs and
expenses (including attorneys' fees) referred to in Section 9.1,
to the extent incurred, shall have been paid in full by the
Corporation.
5.5 Closing of Loan Agreement. The Letter Loan Agreement
-------------------------
dated the date of this Agreement between NationsBank Corporation
and the Holder shall have been executed and delivered.
5.6 Legal Matters. All material matters of a legal nature
-------------
which pertain to this Agreement and the transactions contemplated
hereby shall have been reasonably approved by counsel to the
Holder.
ARTICLE VI.
Conditions to Closing of Corporation
------------------------------------
The Corporation's obligation to sell and issue the Series B
Preferred to be issued at the Closing is, at the option of the
Corporation, subject to the fulfillment as of the Closing Date of
the following conditions:
6.1 Representations and Warranties Correct. The
--------------------------------------------
representations and warranties made by the Holder in Section 3 of
this Agreement shall be true and correct in all material respects
at and as of the Closing.
6.2 Covenants. All covenants, agreements and conditions
---------
contained in this Agreement to be performed by the Holder on or
prior to the Closing Date shall have been performed or complied
with in all material respects.
6.3 Officers' Certificate. The Holder shall have
----------------------
delivered to the Corporation a certificate of the Holder's Vice
President and Assistant Secretary to the effect that the
conditions referred to in Sections 6.1 through 6.3 have been
satisfied.
6.4 Legal Matters. All material matters of a legal nature
-------------
which pertain to this Agreement and the transactions contemplated
hereby shall have been reasonably approved by counsel to the
Corporation.
ARTICLE VII.
Registration Rights
-------------------
7.1 Required Registrations. At any time after (i) an
----------------------
Event of Noncompliance has occurred and is continuing or (ii) the
Series B Preferred has been converted, the Holder may notify the
Corporation in writing that the Holder intends to offer for
public sale any of the Registrable Securities. Upon delivery to
the Corporation of such notification, the Corporation shall use
its best efforts to cause the Registrable Securities as may be
requested by the Holder to be included in a registration
statement under the Securities Act. All expenses of any
registration pursuant to this Section and the reasonable fees and
expenses of one (1) independent counsel for the Holder will be
borne by the Corporation (excluding underwriting discounts,
selling commissions and stock transfer taxes applicable to the
securities registered by the Holder). This Section will not
apply to requests for registration on Form S-3 (or successor
form) which will be governed by Section 7.2. The Corporation
shall not be obligated to file a registration statement under
this Section unless the Holder requests the registration of
Registrable Securities either (a) having a market value of at
least $5,000,000 or (b) constituting all of the Registrable
Securities then held by the Holder. The Corporation's
obligations under this Section shall continue for multiple
registrations so long as the Holder holds any Registrable
Securities.
7.2 Form S-3. The Corporation shall use its best
---------
efforts to continue to be eligible for use of Form S-3 or any
successor form. If at any time after (i) an Event of
Noncompliance has occurred and is continuing or (ii) the Series B
Preferred has been converted, the Corporation is eligible to
effect a registration of its securities under Form S-3 (or a
successor form), the Holder will have the right to request, and
the Corporation shall use its best efforts to effect,
registrations of shares of its Registrable Securities on Form S-3
(but no more than two such registrations during any one fiscal
year). The Corporation shall not be obligated to file a
registration statement under this Section unless the Holder
requests the registration of Registrable Securities either (a)
having a market value of at least $5,000,000 or (b) constituting
all of the Registrable Securities then held by the Holder. All
expenses incurred in connection with the registrations requested
pursuant to this Section 7.2, including the reasonable fees and
expenses of one (1) independent counsel for the Holder, will be
borne by the Corporation (excluding underwriting discounts,
selling commissions and stock transfer taxes applicable to the
securities registered by the Holder).
7.3 Procedure for Registration. Whenever the
-----------------------------
Corporation is required under this Agreement to register
Registrable Securities, it agrees to do the following:
(a) Use its best efforts promptly to prepare and file
with the Commission a registration statement and such amendments
and supplements to said registration statement and the prospectus
as may be necessary to declare or keep the registration statement
effective and to comply with the provisions of the Securities Act
for the period necessary to complete the proposed public
offering, but not more than 180 days; provided, however, that in
the case of any registration of Registrable Securities on Form S-
3 that are intended to be offered on a continuous or delayed
basis, such 180-day period shall be extended, if necessary, to
keep the registration statement effective until all such
Registrable Securities are sold;
(b) Furnish to the Holder such copies of each
preliminary and final prospectus and such other documents as the
Holder may reasonably request to facilitate the public offering
of its Registrable Securities;
(c) Enter into any underwriting agreement with
customary provisions;
(d) Use its best efforts to register or qualify the
Registrable Securities covered by the registration statement
under the securities or "blue-sky" laws of such jurisdictions as
the Holder may reasonably request, although the Corporation will
not have to register in any states that require it to qualify to
do business or subject itself to general service of process; and
(e) The Corporation is not required to file a
registration statement within forty-five (45) days following the
effective date of any other registration statement initiated by
the Corporation. The Corporation may postpone the filing of any
registration statement required under Sections 7.1 or 7.2 for a
reasonable period of time, not to exceed forty-five (45) days, if
the Corporation has been advised by legal counsel that such
filing would require the disclosure of a material fact, and the
Corporation determines reasonably and in good faith that such
disclosure would have a Material Adverse Effect.
7.4 Indemnification.
---------------
(a) Subject to applicable law, the Corporation will
indemnify the Holder in connection with the inclusion of
Registrable Securities in the registration statement, and each
Person controlling the Holder, against all claims, losses,
damages and liabilities, including legal and other expenses
reasonably incurred, arising out of any untrue or allegedly
untrue statement of a material fact contained in the registration
statement, or any omission or alleged omission to state a
material fact required to be stated in the registration
statement or necessary to make the statements not misleading, or
arising out of any violation by the Corporation of the Securities
Act, any state securities or "blue-sky" laws or any applicable
rule or regulation and will promptly reimburse the Holder and any
such other Person for any costs or expenses incurred in suits,
claims, investigations or proceedings arising out of any such
registration statement. This indemnification will not apply to
any claims, losses, damages or liabilities to the extent they
arise out of or are based upon an untrue statement or omission
based upon information furnished in writing to the Corporation by
such Holder, or controlling Person, respectively, expressly for
use in the registration statement. With respect to such untrue
statement or omission in the information furnished in writing to
the Corporation by the Holder, the Holder will indemnify the
underwriters, the Corporation, its directors and officers, the
other Persons selling securities under the registration statement
and each Person controlling any of them against any losses,
claims, damages, expenses or liabilities to which any of them may
become subject as a result of such untrue statement or omission
(including those incurred in connection with investigating or
defending against such claims), up to the proceeds received by
the Holder in such offering.
(b) If the indemnification provided for in this
Section is unavailable or insufficient to hold harmless the
Holder, and each Person controlling the Holder, in respect of any
losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then the Corporation shall
contribute to the amount paid or payable by the Holder or such
other Person as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative fault of the Corporation
and the Holder in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). If, however, the allocation
provided by the immediately preceding sentence is not permitted
by applicable law, then the Corporation shall contribute to such
amount paid or payable by the Holder in such proportion as is
appropriate to reflect not only such relative fault but also the
relative benefits received by the Corporation and the Holder from
the offering as well as any other relevant equitable
considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Corporation or the Holder and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Corporation
and the Holder agree that it would not be just and equitable if
contribution pursuant to this Section were determined by pro rata
allocation or by any other method of allocation that does not
take into account the equitable considerations referred to above
in this Section. The amount paid or payable by the Holder as a
result of the losses, claims, damages or liabilities (or actions
in respect thereof) referred to above shall be deemed to include
any legal or other expenses reasonably incurred by the Holder in
connection with investigating or defending any such action or
claim. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation. Notwithstanding any provision
in this Section to the contrary, the Holder shall not be liable
for any amount, in the aggregate, in excess of the net proceeds
to the Holder from the sale of the Holder's shares giving rise to
such losses, claims, damages or liabilities.
(c) The obligations of the Corporation under this
Section shall be in addition to any liability that the
Corporation may otherwise have and shall extend, upon the same
terms and conditions, to each Person, if any, who controls the
Holder within the meaning of the Securities Act.
7.5 Rule 144 Requirements. The Corporation will use
---------------------
all reasonable efforts to file with the Commission such
information as the Commission may require and will use all
reasonable efforts to make available Rule 144 under the
Securities Act (or any successor exemptive rule).
7.6 Obligations in a Registration. The Holder agrees
-----------------------------
to furnish such information regarding the Holder and the
securities sought to be registered as the Corporation may
reasonably request in connection with the registration,
qualification or compliance.
7.7 Limitations on Subsequent Registration Rights.
---------------------------------------------
After the date hereof, the Corporation will not, without
the prior written consent of the Holder, enter into any agreement
with any holder or prospective holder of any securities of the
Corporation that would allow such holder or prospective holder
(a) to make a demand registration which could result in such
registration statement being declared effective within ninety
(90) days of the effective date of any registration effective
pursuant to Sections 7.1 or 7.2, or (b) that would allow any such
holder or prospective holder to have greater rights than the
Holder under Section 7.1 or 7.2.
ARTICLE VIII.
Definitions
-----------
8.1 Definitions. As used in this Agreement, the
-----------
following terms have the following meanings:
"Affiliate" means, when used with respect to a specified
Person, another Person that directly or indirectly through one or
more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
"Business Day" means (a) any day on which commercial banks
are not authorized or required to close in Charlotte, North
Carolina and (b) with respect to all payments, conversions,
payment periods, and notices, any day which is a Business Day
described in clause (a) above and which is also a day on which
dealings in dollar deposits are carried out in the London
interbank market.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under a
lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof (including all
amounts which such Person is obligated to pay to another on
termination of the applicable lease or surrender of the
applicable property, but excluding any amounts required to be
paid by such Person (regardless of whether designated as rents or
additional rents) on account of maintenance, repairs, insurance,
taxes and similar charges), which obligations are required to be
classified and accounted for as capital leases on a balance sheet
of such Person under GAAP and, for the purposes of this
Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock" means any and all shares, interests,
participations, rights or other equivalents (however designated)
of corporate stock.
"Certificate of Designation" means the Certificate of
Designation of Preferences and Rights of Series B Preferred
Stock filed as an amendment to the Corporation's Restated
Articles of Incorporation concurrently with the execution of this
Agreement and attached as Exhibit A.
"Change of Control" means (a) any transfer of any shares of
any class of capital stock that results in the Corporation's ESOP
and the ▇▇▇▇▇ Group owning, in the aggregate, less than the
amount of capital stock as may be necessary to enable them to
cast in excess of 50% of the votes for the election of directors
of the Corporation or (b) during any period of two consecutive
years, persons who at the beginning of such period constituted
the board of directors of the Corporation (including any director
approved by a vote of not less than 66-2/3% of such board) cease
for any reason to constitute greater than 50% of the then acting
board.
"Closing" has the meaning given in Section 1.3.
"Closing Date" has the meaning given in Section 1.3.
"Code" means the Internal Revenue Code of 1986, as amended,
and the regulations promulgated and rulings issued thereunder.
"Commission" means the Securities and Exchange Commission.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, and "Controlling" and
"Controlled" shall have meanings correlative thereto.
"Debt" means as to any Person at any time (without
duplication): (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by bonds,
notes, debentures, or other similar instruments, (c) all
obligations of such Person to pay the deferred purchase price of
Property or services, except trade accounts payable of such
Person arising in the ordinary course of business that are not
past due by more than ninety (90) days, (d) all Capital Lease
Obligations of such Person, (e) all Debt or other obligations of
others Guaranteed by such Person, (f) all obligations secured by
a Lien existing on Property owned by such Person, whether or not
the obligations secured thereby have been assumed by such Person
or are non-recourse to the credit of such Person, (g) all
reimbursement obligations of such Person (whether contingent or
otherwise) in respect of letters of credit, bankers' acceptances,
surety or other bonds and similar instruments, (h) all
obligations of such Person to redeem or retire shares of capital
stock of such Person; (i) all obligations and liabilities of such
Person under Interest Rate Protection Agreements, and (j) all
liabilities of such Person in respect of unfunded vested benefits
under any Plan.
"Environmental Laws" means any and all federal, state, and
local laws, regulations, and requirements pertaining to health,
safety, or the environment, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. section 9601 et seq., the Resource Conservation
------
and Recovery Act of 1976, 42 U. S. C. section 6901 et seq., the
-------
Occupational Safety and Health Act, 29 U S.C. section 651 et seq., the
-------
Clean Air Act, 42 U.S.C. section 7401 et seq., the Clean Water Act, 33
------
U.S.C. section 1251 et seq., and the Toxic Substances Control Act, 15
------
U.S.C. section 2601 et seq., as such laws, regulations, and
--------
requirements may be amended or supplemented from time to time.
"Environmental Liabilities" means, as to any Person, all
liabilities, obligations, responsibilities, Remedial Actions,
losses, damages, punitive damages, consequential damages, treble
damages, costs, and expenses, (including, without limitation, all
reasonable fees, disbursements and expenses of counsel, expert
and consulting fees and costs of investigation and feasibility
studies), fines, penalties, sanctions, and interest incurred as a
result of any claim or demand, by any Person, whether based in
contract, tort, implied or express warranty, strict liability,
criminal or civil statute, including any Environmental Law,
permit, order or agreement with any Governmental Authority or
other Person, arising from environmental, health or safety
conditions or the Release or threatened Release of a Hazardous
Material into the environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations and
published interpretations thereunder.
"ERISA Affiliate" means any corporation or trade or business
which is a member of the same controlled group of corporations
(within the meaning of Section 414(b) of the Code) as the
Corporation or is under common control (within the meaning of
Section 414(c) of the Code) with the Corporation.
"Event of Noncompliance" means (i) any representation,
warranty or statement made or deemed to be made by the
Corporation to the Holder shall be false, misleading or erroneous
in any material respect when made or deemed to have been made; or
(ii) the Corporation shall at any time fail to comply or remain
in compliance with any obligation, covenant or agreement made or
owed by the Corporation to the Holder under any Transaction
Document.
"Financial Officer" of any corporation means the chief
financial officer, principal accounting officer, Treasurer or
Controller of such corporation.
"Form 10-K" means the Corporation's Annual Report on Form 10-
K for the year ended March 31, 1996, as filed with the
Commission.
"GAAP" means generally accepted accounting principles,
applied on a consistent basis, as set forth in Opinions of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and/or in statements of the
Financial Accounting Standards Board and/or their respective
successors and which are applicable in the circumstances as of
the date in question. Accounting principles are applied on a
"consistent basis" when the accounting principles applied in a
current period are comparable in all material respects to those
accounting principles applied in a preceding period.
"Governmental Authority" means any nation or government, any
state or political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory, or administrative
functions of or pertaining to government.
"Guarantee" by any Person means any obligation, contingent
or otherwise, of such Person directly or indirectly guaranteeing
any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct
or indirect, contingent or otherwise, of such Person (a) to
purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by
virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or
(b) entered into for the purpose of assuring in any other manner
the obligee of such Debt or other obligation of the payment
thereof or to protect the obligee against loss in respect thereof
(in whole or in part), provided that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hazardous Material" means any substance, product, waste,
pollutant, material, chemical, contaminant, constituent, or other
material which is or becomes listed, regulated, or addressed
under any Environmental Law, including, without limitation,
asbestos, petroleum, and polychlorinated biphenyls.
"Holder" means Blue Ridge Investments, LLC, a Delaware
limited liability company, an Affiliate of that entity or any
Person to whom that entity or a subsequent Holder has assigned
its rights under this Agreement.
"Insurance Subsidiaries" shall mean Oxford Life Insurance
Company, an Arizona corporation, Ponderosa Holdings, Inc., a
Nevada corporation, Republic Western Insurance Company, an
Arizona corporation, Republic Claims Service Co., an Arizona
corporation, RWIC Investments, Inc., a Nevada corporation, and
Republic Western Syndicate, Inc., a New York corporation.
"Interest Rate Protection Agreements" means, with respect to
any Person, an interest rate swap, cap or collar agreement or
similar arrangement between such Person and one or more financial
institutions providing for the transfer or mitigation of interest
risks either generally or under specified contingencies.
"Lien" means any lien, mortgage, security interest, tax
lien, financing statement, pledge, charge, hypothecation,
assignment, preference, priority, limitation on voting, use or
ownership or other encumbrance of any kind or nature whatsoever
(including, without limitation, any conditional sale or title
retention agreement), whether arising by contract, operation of
law, or otherwise.
"Material Adverse Effect" means the occurrence of any event
or the existence of any condition that could have a material
adverse effect on (a) the Properties, prospects, business,
operations, condition (financial or otherwise), liabilities, or
capitalization of the Corporation and its Subsidiaries taken as a
whole, (b) the ability of the Corporation to pay and perform the
Obligations when due, or (c) the validity or enforceability of
any of the Transaction Documents or the rights and remedies of
the Holder thereunder.
"Multiemployer Plan" means a multiemployer plan defined as
such in Section 4001(a)(3) of ERISA to which the Corporation or
any ERISA Affiliate (other than one considered an ERISA Affiliate
only pursuant to subsection (m) or (o) of Section 414 of the
Code) is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Non-Insurance Subsidiaries" means the Corporation's
Subsidiaries other than the Insurance Subsidiaries.
"Obligations" means all obligations and liabilities of the
Corporation to the Holder, arising pursuant to any of the
Transaction Documents, now existing or hereafter arising, whether
direct, indirect, related, unrelated, fixed, contingent,
liquidated, unliquidated, joint, several, or joint and several,
including, without limitation, the obligation of the Corporation
to pay dividends on the Series B Preferred, interest on the
dividends and all fees, costs, and expenses (including attorneys'
fees) provided for in the Transaction Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to all or any of its functions under ERISA.
"Person" means any individual, corporation, business trust,
association, Corporation, partnership, joint venture,
Governmental Authority, or other entity.
"Picacho" means Picacho Peak Investment Co., a newly formed
Nevada corporation.
"Plan" means any employee benefit or other plan established
or maintained by the Corporation or any ERISA Affiliate and which
is covered by Title IV of ERISA.
"Prohibited Transaction" means any transaction set forth in
Section 406 of ERISA or Section 4975 of the Code.
"Property" means property of all kinds, real, personal or
mixed, tangible or intangible (including, without limitation, all
rights relating thereto), whether owned or acquired on or after
the date of this Agreement.
"Registrable Securities" means any shares of Series B
Preferred, Series B Common Stock or other securities issuable
upon conversion of Series B Preferred, and any other securities
distributable on, with respect to, or in substitution for such
Registrable Securities, except for those that have been sold or
transferred pursuant to an effective registration statement or
pursuant to Rule 144 under the Securities Act.
"Regulatory Change" means any change after the date of this
Agreement in United States federal, state or foreign laws or
regulations (including Regulation D of the Board of Governors of
the Federal Reserve System as the same may be amended or
supplemented from time to time) or the adoption or making after
such date of any interpretations, directives or requests applying
to a class of institutions including NationsBank Corporation of
or under any United States federal, state or foreign laws or
regulations (whether or not having the force of law) by any court
or governmental or monetary authority charged with the
interpretation or administration thereof.
"Release" means, as to any Person, any release, spill,
emission, leaking, pumping, injection, deposit, disposal,
disbursement, leaching, or migration of Hazardous Materials into
the indoor or outdoor environment or into or out of Property
owned by such Person, including, without limitation, the movement
of Hazardous Materials through or in the air, soil, surface
water, ground water, or Property.
"Remedial Action" means all actions required to (a) cleanup,
remove, treat, or otherwise address Hazardous Materials in the
indoor or outdoor environment, (b) prevent the Release or threat
of Release or minimize the further Release of Hazardous Materials
so that they do not migrate or endanger or threaten to endanger
public health or welfare or the indoor or outdoor environment, or
(c) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
"Reportable Event" means any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder
with respect to a Plan (other than a Plan maintained by an ERISA
Affiliate which is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Code).
"Securities Act" means the Securities Act of 1933, as
amended, or any successor statute.
"Series B Common Stock" has the meaning given in
Section 1.1.
"Series B Preferred" has the meaning given in Section 1.1.
"▇▇▇▇▇ Group" means (a) ▇.▇. ▇▇▇▇▇ and the spouse and lineal
descendants of said individual, the spouses of said lineal
descendants and the lineal descendants of said spouses, (b) any
trusts for the benefit of or the executor or administrator of the
estate of or other legal representative of any of the individuals
referred to in the immediately preceding clause (a) and (c) any
corporation with respect to which all the voting stock thereof
is, directly or indirectly, owned by any of the individuals
referred to in the preceding clause (a).
"Subsidiary" means, with respect to any Person, any
corporation, partnership, association or other business entity
(a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary
voting power or more than 50% of the general partnership
interests are, at the time any determination is being made,
owned, controlled or held, or (b) which is, at the time any
determination is made, otherwise Controlled by such Person or one
or more Subsidiaries of such Person or by such Person and one or
more Subsidiaries of such Person and, with respect to the
Corporation, Picacho.
"Transaction Documents" means this Agreement, the
Certificate of Designation, and all other instruments, documents,
and agreements executed and delivered pursuant to or in
connection with this Agreement or the Holder's purchase or
holding of the Series B Preferred, the Series B Common Stock or
Registrable Securities, as such instruments, documents, and
agreements may be amended, modified, renewed, extended, or
supplemented from time to time.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
8.2 Other Definitional Provisions. All definitions
------------------------------
contained in this Agreement are equally applicable to the
singular and plural forms of the terms defined. The words
"hereof", "herein", and "hereunder" and words of similar import
referring to this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement. Unless
otherwise specified, all Article and Section references pertain
to this Agreement.
8.3 Accounting Terms and Determinations. Except as
-----------------------------------
otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be
delivered to the Holder hereunder shall be prepared, in
accordance with GAAP, on a basis consistent with those used in
the preparation of the financial statements referred to in
Section 2.3 hereof. All calculations made for the purposes of
determining compliance with the provisions of this Agreement
shall be made by application of GAAP, on a basis consistent with
those used in the preparation of the financial statements
referred to in Section 2.3 hereof. To enable the ready and
consistent determination of compliance by the Corporation with
its obligations under this Agreement, the Corporation will not
change the last day of its fiscal year from March 31, or the last
days of the first three fiscal quarters of the Corporation in
each of its fiscal years from June 30, September 30 and
December 31, respectively.
ARTICLE IX.
Miscellaneous
-------------
9.1 Expenses.
--------
(a) The Corporation hereby agrees to pay on demand:
(i) all costs and expenses of the Holder in connection with
the preparation, negotiation, execution, and delivery of
this Agreement and the other Transaction Documents and any
and all amendments, modifications, renewals, extensions, and
supplements thereof and thereto, including, without
limitation, the fees and expenses of legal counsel for the
Holder, (ii) all costs and expenses of the Holder in
connection with any Event of Noncompliance and the
enforcement of this Agreement or any other Transaction
Document, including, without limitation, the fees and
expenses of legal counsel for the Holder, (iii) all
transfer, stamp, documentary, or other similar taxes,
assessments, or charges levied by any Governmental Authority
in respect of this Agreement or any of the other Transaction
Documents, (iv) all costs, expenses, assessments, and other
charges incurred in connection with any conversion,
redemption or registration of the Series B Preferred or any
other action contemplated by this Agreement or any other
Transaction Document, (v) the fees of NationsBanc Capital
Markets, Inc. under the terms of that certain letter dated
August 30, 1996 from NationsBanc Capital Markets, Inc. to
the Corporation; and (vi) all other costs and expenses
incurred by the Holder in connection with this Agreement or
any other Transaction Document.
(b) Without limiting paragraph (a) of this Section, if
after the date hereof, the Holder shall have determined that
the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any other Regulatory Change
relating thereto or compliance by the Holder (or its parent)
with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on the
Holder's (or its parent's) capital as a consequence of its
obligations hereunder or the transactions contemplated
hereby to a level below that which the Holder (or its
parent) could have achieved but for such adoption, change or
compliance (taking into consideration the Holder's parent's
policies with respect to capital adequacy and all other
fees, commissions, increases in dividends or other charges
received by the Holder under the Transaction Documents) by
an amount deemed by the Holder to be material, then from
time to time, within ten (10) Business Days after demand by
the Holder, the Corporation shall pay to the Holder such
additional amount or amounts as will compensate the Holder
(or its parent) for such reduction. A certificate of the
Holder claiming compensation under this paragraph and
setting forth the additional amount or amounts to be paid to
it hereunder shall be (a) prima facie valid, provided that
the determination thereof is made on a reasonable basis and
(b) delivered to the Corporation by the Holder within thirty
(30) days after (i) the Holder obtains knowledge of the
occurrence of the Regulatory Change giving rise to the
amount claimed hereunder and (ii) determines to demand
compensation under this paragraph for such amount. In
determining the amount or amounts claimed under this
paragraph, the Holder may use any reasonable averaging and
attribution methods.
9.2 Indemnification. The Corporation shall indemnify the
---------------
Holder and each Affiliate thereof and their respective officers,
directors, employees, attorneys, and agents from, hold each of
them harmless against, and promptly reimburse any of them for any
and all losses, liabilities, claims, damages, penalties,
judgments, disbursements, costs, and expenses (including fees and
expenses of counsel selected by the Holder) to which any of them
may become subject that directly or indirectly arise from or
relate to (a) the negotiation, execution, delivery, performance,
administration, or enforcement of any of the Transaction
Documents, (b) any of the transactions contemplated by the
Transaction Documents, (c) any breach by the Corporation of any
representation, warranty, covenant, or other agreement contained
in any of the Transaction Documents, (d) the presence, Release,
threatened Release, disposal, removal, or cleanup of any
Hazardous Material located on, about, within, or affecting any of
the Properties of the Corporation or any Subsidiary, or (e) any
investigation, litigation, or other proceeding, including,
without limitation, any threatened investigation, litigation, or
other proceeding relating to any of the foregoing. WITHOUT
LIMITING ANY PROVISION OF THIS AGREEMENT OR OF ANY OTHER
TRANSACTION DOCUMENT, IT IS THE EXPRESS INTENTION OF THE PARTIES
HERETO THAT EACH PERSON TO BE INDEMNIFIED UNDER THIS SECTION
SHALL BE INDEMNIFIED FROM AND HELD HARMLESS AGAINST ANY AND ALL
LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS,
DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS' FEES)
ARISING OUT OF OR RESULTING FROM THE SOLE OR CONTRIBUTORY
NEGLIGENCE OF SUCH PERSON.
9.3 Limitation of Liability. None of the Holder, or any
-----------------------
Affiliate, officer, director, employee, attorney, or agent
thereof shall have any liability with respect to, and the
Corporation hereby waives, releases, and agrees not to ▇▇▇ any of
them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by the Corporation in
connection with, arising out of, or in any way related to, this
Agreement or any of the other Transaction Documents, or any of
the transactions contemplated by this Agreement or any of the
other Transaction Documents. The Corporation hereby waives,
releases, and agrees not to ▇▇▇ the Holder or any of its
respective Affiliates, officers, directors, employees, attorneys,
or agents for exemplary or punitive damages in respect of any
claim in connection with, arising out of, or in any way related
to, this Agreement or any of the other Transaction Documents, or
any of the transactions contemplated by this Agreement or any of
the other Transaction Documents.
9.4 No Duty. All attorneys, accountants, appraisers, and
-------
other professional Persons and consultants retained by the Holder
shall have the right to act exclusively in the interest of the
Holder and shall have no duty of disclosure, duty of loyalty,
duty of care, or other duty or obligation of any type or nature
whatsoever to the Corporation or any of the Corporation's
shareholders or any other Person.
9.5 Equitable Relief. The Corporation recognizes that in
----------------
the event the Corporation fails to perform, observe, or discharge
any or all of its obligations under the Transaction Documents,
any remedy at law may prove to be inadequate relief to the
Holder. The Corporation therefore agrees that the Holder, if the
Holder so requests, shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of
proving actual damages.
9.6 No Waiver; Cumulative Remedies. No failure on the part
------------------------------
of the Holder to exercise and no delay in exercising, and no
course of dealing with respect to, any right, power, or privilege
under this Agreement or any other Transaction Document shall
operate as a waiver thereof, nor shall any single or partial
exercise of any right, power, or privilege under this Agreement
or any other Transaction Document preclude any other or further
exercise thereof or the exercise of any other right, power, or
privilege. The rights and remedies provided for in this
Agreement and the other Transaction Documents are cumulative and
not exclusive of any rights and remedies provided by law.
9.7 Successors and Assigns. This Agreement shall be binding
----------------------
upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Neither the Corporation nor
the Holder may assign or transfer any of its rights or
obligations hereunder, without the prior written consent of the
other party; provided, however, the Corporation (a) acknowledges
that the Holder has pledged its rights in the Series B Preferred
and its rights under this Agreement to NationsBank Corporation
and (b) agrees that NationsBank Corporation may exercise the
rights of the Holder hereunder and is entitled to the benefits
hereof.
9.8 Survival. All representations and warranties made or
--------
deemed made in this Agreement or any other Transaction Document
or in any document, statement, or certificate furnished in
connection with this Agreement shall survive the execution and
delivery of this Agreement and the other Transaction Documents,
and no investigation by the Holder or any closing shall affect
the representations and warranties or the right of the Holder to
rely upon them. Without prejudice to the survival of any other
obligation of the Corporation hereunder, the obligations of the
Corporation under Article 7 and Article 10 shall survive
termination of this Agreement.
9.9 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER
-----------------
TRANSACTION DOCUMENTS REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL
PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT
MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES HERETO. THE PROVISIONS OF THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS MAY BE AMENDED OR
WAIVED ONLY BY AN AGREEMENT IN WRITING SIGNED BY THE PARTIES
HERETO.
9.10 Notices. All notices and other communications
-------
provided for in this Agreement and the other Transaction
Documents shall be given or made in writing and telecopied,
mailed by certified mail return receipt requested, or delivered
to the intended recipient at the "Address for Notices" specified
below its name on the signature pages hereof; or at such other
address as shall be designated by such party in a notice to each
other party given in accordance with this Section. All such
communications shall be deemed to have been duly given when
transmitted by telecopy, subject to telephone confirmation of
receipt, or when personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as provided
herein.
9.11 Governing Law; Submission to Jurisdiction; Service
--------------------------------------------------
of Process. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
-----------
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA AND
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. THE CORPORATION
HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA
AND OF ANY NORTH CAROLINA STATE COURT SETTING IN CHARLOTTE, NORTH
CAROLINA, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT
OF OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT,
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THE
CORPORATION IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL
PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
OF SUCH PROCESS TO THE CORPORATION AT ITS ADDRESS SET FORTH
UNDERNEATH ITS SIGNATURE HERETO. THE CORPORATION IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORM.
9.12 Counterparts. This Agreement may be executed in
------------
one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same agreement.
9.13 Severability. Any provision of this Agreement
------------
held by a court of competent jurisdiction to be invalid or
unenforceable shall not impair or invalidate the remainder of
this Agreement and the effect thereof shall be confined to the
provision held to be invalid or illegal.
9.14 Headings. The headings, captions, and
--------
arrangements used in this Agreement are for convenience only and
shall not affect the interpretation of this Agreement.
9.15 Construction. The Corporation and the Holder
------------
acknowledge that each of them has had the benefit of legal
counsel of its own choice and has been afforded an opportunity to
review this Agreement and the other Transaction Documents with
its legal counsel and that this Agreement and the other
Transaction Documents shall be construed as if jointly drafted by
the parties hereto.
9.16 Independence of Covenants. All covenants
----------------------------
hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant
shall not avoid the occurrence of an Event of Noncompliance if
such action is taken or such condition exists.
9.17 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT
----------------------
PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON
CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY
OF THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREBY OR THE ACTIONS OF THE HOLDER IN THE NEGOTIATION,
ADMINISTRATION, OR ENFORCEMENT THEREOF.
The foregoing agreement is hereby executed as of the date
first above written.
CORPORATION:
AMERCO
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Title: TREASURER
-----------------------
Address for Notices:
AMERCO
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇
-----------------------------
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
HOLDER:
BLUE RIDGE INVESTMENTS, LLC
By: /S/ ▇▇▇▇▇▇ ▇. CARP
-----------------------
Name: ▇▇▇▇▇▇ ▇. Carp
Title: Vice President-Finance
Address for Notices:
NationsBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
EXHIBIT A
TO
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
CERTIFICATE OF DESIGNATION OF PREFERENCES
AND RIGHTS OF SERIES B PREFERRED STOCK
EXHIBIT B
TO
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
CERTIFICATE OF DESIGNATION OF PREFERENCES
AND RIGHTS OF SERIES B COMMON STOCK
EXHIBIT C
TO
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
FORM OF NOTE