AMENDED AND RESTATED SIDE AGREEMENT
This Amended and Restated Side Agreement (the "Agreement")
is entered into as of June 1, 1997, by and among AMERCO, a Nevada
corporation ("AMERCO"), Blue Ridge Investments, L.L.C., a
Delaware limited liability company ("Blue Ridge"), and
NationsBank Corporation, a North Carolina corporation
("NationsBank").
WHEREAS, AMERCO and Blue Ridge have entered into that
certain Series B Preferred Stock Purchase Agreement dated as of
August 30, 1996 (the "Stock Purchase Agreement"), providing for
the purchase by Blue Ridge from AMERCO of shares of AMERCO's
Series B Preferred Stock, no par value (the "Series B
Preferred"), and certain other agreements and transactions on
August 30, 1996 and October 1, 1996 (the Stock Purchase Agreement
and such other agreements and transactions are collectively
referred to herein as the "Transaction"), as revised by that
certain Side Agreement dated as of October 29, 1996 (the "Side
Agreement") and letter agreements dated as of December 26, 1996
and March 25, 1997 (the "Letter Agreements");
WHEREAS, Blue Ridge (or any subsequent holder of the Series
B Preferred) has the right to convert, upon the occurrence of
certain events described in the Certificate of Designation of
Preferences and Rights of Series B Preferred Stock of AMERCO (the
"Certificate of Designation"), all of the Series B Preferred into
4,000,000 shares (subject to adjustment) of AMERCO's Series B
Common Stock or all of the shares of capital stock of Picacho
Peak Investments Co., a Nevada corporation ("Picacho");
WHEREAS, pursuant to the Certificate of Designation, Blue
Ridge (or any subsequent holder of the Series B Preferred) also
has the right to convert the Series B Preferred as described
above on August 31, 1997 and during the first ten business days
of each fiscal quarter beginning after August 31, 1997;
WHEREAS, the provisions of the Certificate of Designation
permitting conversion of the Series B Preferred into Picacho on
August 31, 1997 and during the first ten business days of each
fiscal quarter beginning after August 31, 1997 would result in an
adverse accounting treatment of the Transaction;
WHEREAS, AMERCO has advised Blue Ridge that Picacho desires
to make one or more loans (individually and collectively, the
"Loan") to AMERCO in the aggregate principal amount of
$50,000,000, which Loan requires the consent of Blue Ridge and
NationsBank;
WHEREAS, the parties desire to amend and restate the Side
Agreement for the purpose of continuing certain of the agreements
contained in the Side Agreement, amending certain other of the
agreements contained in the Side Agreement and adding additional
agreements to those contained in the Side Agreement;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1. The Side Agreement and the Letter Agreements are
terminated and replaced in their entirety by this Agreement. All
capitalized terms used in this Agreement, unless otherwise
defined herein, shall have the same meaning as in Stock Purchase
Agreement.
2. Blue Ridge and NationsBank agree that, notwithstanding
the provisions of Section 3(a) of the Certificate of
Designation, neither party shall convert, pursuant to Section
3(a)(i) or Section 3(a)(ii) of the Certificate of Designation,
the Series B Preferred into any or all of the capital stock of
Picacho or into any shares of AMERCO's Series B Common Stock.
Nothing in this Agreement shall limit Blue Ridge's or
NationsBank's ability to convert the Series B Preferred under any
provision other than Section 3(a)(i) or Section 3(a)(ii) of the
Certificate of Designation.
3. AMERCO, Blue Ridge and NationsBank agree that, in
addition to the provisions of Section 3(a) of the Certificate of
Designation, Blue Ridge and NationsBank (or any subsequent holder
of the Series B Preferred) shall have the right to convert any or
all of the Series B Preferred into shares of AMERCO's Series B
Common Stock (a) on January 1, 1998 and for 10 Business Days
after January 1, 1998; (b) on July 1, 1998 and for 10 Business
Days after July 1, 1998; and (c) on December 1, 1998 and for 10
Business Days after December 1, 1998.
4. AMERCO, Blue Ridge and NationsBank agree that the
provisions of the Summary of Indicative Terms and Conditions,
attached to that certain letter from NationsBank of Texas, N.A.
to AMERCO dated July 16, 1996, creating any obligation of the
Arranger (as defined therein) to rebate any portion of its fees
are hereby deleted, voided and rendered unenforceable.
5. Blue Ridge and NationsBank agree that, as a condition
of any transfer of the Series B Preferred to a third party, such
third party shall agree to be bound by the terms of this
Agreement. Blue Ridge and NationsBank agree to the placement of
the following legend on the stock certificate representing the
Series B Preferred:
"The securities evidenced hereby are subject to the terms of
that certain Amended and Restated Side Agreement, dated as of
June 1, 1997, which limits the ability of the holder of the
securities to convert the securities."
6. AMERCO, Blue Ridge and NationsBank agree that Section
4.8 of the Stock Purchase Agreement is deleted and amended to
read in its entirety as follows:
4.8 Ownership and Operation of Picacho. The
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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 its 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 all of
its assets with an investment manager satisfactory to the Holder,
provided that Picacho may loan to AMERCO from Picacho's assets up
to $50,000,000 in principal amount outstanding from time to time,
which amount is not required to be invested with an investment
manager satisfactory to the Holder during the period that it is
loaned to AMERCO;
(e) cause Picacho at all times to maintain a
stockholders' equity of at least the product of (i) the number of
shares of Series B Preferred outstanding and (ii) the Conversion
Value.
(f) cause Picacho to maintain its Articles of
Incorporation and Bylaws in effect as at June 1, 1997.
7. AMERCO, Blue Ridge and NationsBank agree that the
Letter Agreement dated as of August 30, 1996 between NationsBank
of Texas, N.A. and Picacho Peak Investments Co. is to be
terminated and replaced by a letter in substantially the form
attached to this Agreement as Exhibit A.
8. AMERCO agrees that:
(a) The changes in the Transaction effected by this
Agreement shall not be deemed a consent to the amendment of,
departure from or waiver of (i) any of the covenants in Section
4.8 of the Stock Purchase Agreement, except as specifically
stated in Section 6 of this Agreement; (ii) any other covenant or
condition in any Transaction Document; or (iii) any Event of
Noncompliance that otherwise may arise as a result of the Loan.
The failure to comply with any of the covenants or conditions
contained in any Transaction Document shall constitute an Event
of Noncompliance;
(b) Except as specifically set forth herein, all terms
and provisions of the Transaction Documents, all rights of Blue
Ridge and NationsBank and all obligations of AMERCO and Picacho
thereunder shall remain in full force and effect, are ratified
and confirmed in all respects, and shall continue to be legal,
valid, binding and enforceable in accordance with their terms;
(c) Before any Loan is made by Picacho to AMERCO,
AMERCO will provide Blue Ridge and NationsBank a certificate of
an authorized officer to the effect that:
(i) immediately before and upon making the
Loan, the representations and warranties made by AMERCO in
Section 2 of the Stock Purchase Agreement are and will continue
to be true and correct in all material respects at and as of the
date the Loan is made;
(ii) immediately before and upon making the
Loan, all covenants, agreements, and conditions contained in the
Stock Purchase Agreement to be performed by AMERCO on or prior to
the date the Loan is made have been performed or complied with
and will continue to be performed or complied with in all
material respects; and
(iii) the making of the Loan has been duly
authorized by all necessary action on the part of AMERCO and
Picacho and does not and will not: (A) violate any provision of
law applicable to AMERCO or Picacho, the certificate of
incorporation or bylaws of AMERCO or Picacho or any order,
judgment, or decree of any court or agency of government binding
upon AMERCO or Picacho; (B) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a
default under any material contractual obligation of AMERCO or
Picacho; (C) result in or require the creation or imposition of
any material lien upon any of the properties or assets of AMERCO
or Picacho; or (D) require any approval or consent of any Person
under any material contractual obligation of AMERCO or Picacho
except for such approvals and consents which have been obtained.
(e) AMERCO will repay the Loan in full on or before
December 1, 1998 and Picacho will deliver the amounts received
from such repayment directly to NationsBank of Texas, N.A. for
investment in accordance with the Investment Letter attached as
Exhibit A to this Agreement, subject to conversion or redemption
of the Series B Preferred.
(d) The failure of AMERCO or Picacho to comply with
any of the covenants contained in this Agreement shall constitute
an Event of Noncompliance.
9. TO INDUCE BLUE RIDGE AND NATIONSBANK TO AGREE TO THE
TERMS OF THIS AGREEMENT, AMERCO REPRESENTS AND WARRANTS THAT AS
OF THE DATE OF ITS EXECUTION OF THIS AGREEMENT THERE ARE NO
CLAIMS OR OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS TO ITS
OBLIGATION UNDER THE TRANSACTION DOCUMENTS AND IN ACCORDANCE
THEREWITH IT WAIVES ANY AND ALL SUCH CLAIMS, OFFSETS, DEFENSES OR
COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE
DATE OF ITS EXECUTION OF THIS AGREEMENT.
10. AMERCO also represents and warrants to Blue Ridge and
NationsBank that the following statements are true, correct and
complete:
(a) after giving effect to this Agreement, no Event of
Noncompliance has occurred and is continuing;
(b) after giving effect to this Agreement, the
representations and warranties set forth in the Transaction
Documents are true and correct in all material respects on and as
of the date hereof with the same effect as though made on and as
of such date except with respect to any representations and
warranties limited by their terms to a specific date; and
(c) the execution, delivery and performance of this
Agreement has been duly authorized by all necessary action on the
part of AMERCO and does not and will not: (1) violate any
provision of law applicable to AMERCO or Picacho, the certificate
of incorporation or bylaws of AMERCO or Picacho or any order,
judgment, or decree of any court or agency of government binding
upon AMERCO or Picacho; (2) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a
default under any material contractual obligation of AMERCO or
Picacho; (3) result in or require the creation or imposition of
any material lien upon any of the properties or assets of AMERCO
or Picacho; or (4) require any approval or consent of any Person
under any material contractual obligation of AMERCO or Picacho
except for such approvals and consents which have been obtained.
11. Blue Ridge and NationsBank agree to execute and deliver
such further agreements and instruments, and take such further
action as may be requested by AMERCO to carry out the provisions
and purposes of this Agreement and to cause all subsequent
holders of the Series B Preferred to be bound by the terms of
this Agreement.
12. AMERCO agrees to pay (or cause to be paid) all costs
and expenses of Blue Ridge and NationsBank in connection with the
preparation, negotiation, execution, and delivery of this
Agreement and all other instruments, documents, and agreements
executed and delivered pursuant to or in connection with this
Agreement, as provided in Section 9.1 of the Stock Purchase
Agreement. Concurrently with the execution of this Agreement,
AMERCO has paid to NationsBank of Texas, N.A. or its affiliate a
fee of $1,000,000
13. THIS AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT
AMONG THE PARTIES HERETO AND SUPERSEDES 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.
14. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of North Carolina
without regard to conflicts of law principles.
15. This Agreement may be executed in one or more
counterparts and in telecopied counterparts, each of which shall
be deemed an original but all of which together shall constitute
one and the same agreement.
The foregoing Agreement is hereby executed as of the date
first above written.
AMERCO
By: /S/ XXXX X. XXXXXXXXXXX
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Name: XXXX X. XXXXXXXXXXX
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Title: SECRETARY
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BLUE RIDGE INVESTMENTS, L.L.C.
By: /S/ XXXXXX X. CARP
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Name: XXXXXX X. CARP
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Title: VP FINANCE
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NATIONSBANK CORPORATION
By: /S/ XXXX X. XXXX
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Name: XXXX X. XXXX
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Title: SR. VICE PRESIDENT, TREASURER
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