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Exhibit 1.1
Execution Copy
AMERCO
(a Nevada corporation)
$150,000,000
7.20% Senior Notes Due 2002
UNDERWRITING AGREEMENT
March 26, 1999
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TABLE OF CONTENTS
Page
SECTION 1 Representations and Warranties.......................................2
SECTION 2 Purchase and Sale....................................................7
SECTION 3 Delivery and Payment.................................................7
SECTION 4 Covenants of the Company.............................................8
(a) Notice of Certain Events.............................................8
(b) Notice of Certain Proposed Filings...................................8
(c) Copies of the Registration Statement and the Prospectus..............9
(d) Filing of Amendments.................................................9
(e) Copies of Amendments.................................................9
(f) Copies of Public Reports and Required Filings........................9
(g) Revisions of Prospectus - Material Changes...........................9
(h) Earnings Statements.................................................10
(i) Blue Sky Qualifications.............................................10
(j) 1934 Act Filings....................................................10
(k) Restriction on Sale of Securities...................................10
(l) Investment Company Act..............................................11
SECTION 5 Conditions of Underwriters' Obligations.............................11
(a) Stop Order and Effectiveness........................................11
(b) Statements Within Registration Statement or Prospectus..............11
(c) Corporate Proceedings; Legal Matters................................11
(d) Legal Opinions......................................................12
(e) Officer's Certificate...............................................18
(f) Comfort Letter......................................................19
(g) Changes Affecting the Securities....................................19
(h) Credit Downgrade....................................................19
(i) Other Documents.....................................................19
SECTION 6 Reimbursement of Underwriters' Expenses.............................20
SECTION 7 Indemnification.....................................................20
(a) Indemnification of the Underwriters.................................20
(b) Indemnification of Company..........................................21
(c) General.............................................................22
SECTION 8 Contribution........................................................22
SECTION 9 Payment of Expenses.................................................23
SECTION 10 Representations, Warranties and Agreements to Survive Delivery.....24
(i)
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SECTION 11 Termination........................................................24
(a) Termination; General...............................................24
(b) Liabilities........................................................25
SECTION 12 Defaulting Underwriters............................................25
SECTION 13 Notices............................................................25
SECTION 14 Governing Law......................................................25
SECTION 15 Parties............................................................26
SECTION 16 Effect of Headings.................................................26
SECTION 17 Counterparts.......................................................26
(ii)
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AMERCO
7.20% Senior Notes Due 2002
UNDERWRITING AGREEMENT
March 26, 1999
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs and Madams:
AMERCO, a Nevada corporation (the "Company"), the direct parent of the
subsidiaries named in Schedule III hereto confirms its agreement with the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives with respect to the issue and
sale by the Company of the principal amount of its securities identified in
Schedule I hereto (the "Securities"). The Securities are to be issued pursuant
to a Senior Indenture (the "Indenture") dated as of April 1, 1999 between the
Company and The Bank of New York, as trustee (the "Trustee"), as supplemented by
a Supplemental Indenture, to be dated as of the Closing Date (as hereinafter
defined), between the Company and the Trustee (the "Supplemental Indenture").
The Securities are to be issued pursuant to resolutions adopted by the Board of
Directors of the Company. As of the date hereof, the Company has authorized the
issuance and sale of up to U.S. $150,000,000 aggregate principal amount of
Securities through the Underwriters pursuant to the terms of this Agreement. If
the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm or
firms.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (File No. 333-73357) with respect to
the registration of debt securities, including the Securities, in conformity
with the requirements of the Securities Act of 1933, as amended (the "1933
Act"), and the offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the SEC under 1933 Act (the "1933 Act
Regulations"). Such registration statement has become effective under the 1933
Act. If any post-effective amendment to such registration statement has been
filed with the SEC prior to the Representation Date (as defined below), the most
recent such amendment has been declared effective by the SEC. Copies of such
registration statement and any amendments thereto have been delivered by the
Company to the Underwriters.
As used in this Agreement, "Effective Time" means the date and the time
as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the SEC; and "Effective
Date" means the date of the Effective Time. As provided in Section 3(a), a
prospectus supplement reflecting the terms of the Securities, the terms of the
offering thereof and the other matters set forth therein has been prepared and
will be filed pursuant to Rule 424 under the 1933 Act ("Rule 424"). In addition,
a preliminary prospectus supplement
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reflecting the terms of the Securities, the terms of the offering thereof, and
the other matters set forth therein also may be prepared and filed pursuant to
Rule 424. Such prospectus supplement, in the form filed on or after the date of
this Agreement pursuant to Rule 424, is referred to in this Agreement as the
"Prospectus Supplement," and any such preliminary prospectus supplement in the
form filed after the date of this Agreement pursuant to Rule 424 is referred to
as the "Preliminary Prospectus Supplement." Any prospectus accompanied by a
Preliminary Prospectus Supplement is referred to in this Agreement, collectively
with such Preliminary Prospectus Supplement, as a "Preliminary Prospectus." The
registration statement referred to in this preamble, as amended, including the
exhibits thereto and the documents filed by the Company with the SEC pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), including any
exhibits thereto, that are incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act (the "Incorporated Documents"), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information"), is called the "Registration
Statement"; and the basic prospectus included therein relating to all offerings
of securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is called the "Prospectus," except that, if such basic
prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term "Prospectus"
shall refer to the basic prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case including the
Incorporated Documents. Any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual or interim report
of the Company or other documents filed pursuant to Section 13(a) or 15(d) of
the 1934 Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement. Notwithstanding the
foregoing, any prospectus supplement prepared or filed with respect to an
offering pursuant to the Registration Statement of securities other than the
Securities shall not be deemed to have supplemented the Prospectus.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, the
Representative and to each Underwriter named in Schedule II hereto, as of the
date hereof and as of the Closing Date as follows:
(i) Due Incorporation and Foreign Qualification. Each of the
Company and its subsidiaries has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its organization, with full power and authority
(corporate and other) to own or lease its properties and conduct its
business as described in the Prospectus and is duly qualified to do
business and is in good standing in each jurisdiction in which the
character of the business conducted by it or the location of the
properties owned or leased by it make such qualification necessary,
except where the failure so to qualify would not have a material
adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole; and none of the subsidiaries of the
Company, other than any so identified in Schedule III to this
Agreement, is a "significant subsidiary," as such term is defined in
Rule 405 of the 1933 Act Regulations.
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(ii) Registration Statement and Prospectus; Incorporated
Documents; Indenture. The Company meets the requirements for the use of
Form S-3 under the 1933 Act. The Registration Statement has become
effective; no stop order suspending the effectiveness of the
Registration Statement is in effect; and no proceedings for such
purpose are pending before or, to the Company's knowledge, threatened
by the SEC. The Registration Statement conformed, on the Effective Date
or (with respect to Incorporated Documents) on the date of filing
thereof with the SEC, in all material respects, to the requirements of
the 1933 Act and the 1933 Act Regulations, and the Registration
Statement on the Effective Date did not contain and at the Time of
Delivery (as defined below) will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with SEC,
as the case may be, will conform in all material respects to the
requirements of the 1933 Act or the 1934 Act, as applicable, and the
rules and regulations of the SEC thereunder and will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and on the
Effective Date, the Indenture conformed and will conform in all
material respects with the requirements of the Trust Indenture Act of
1939, as amended (the "1939 Act"), and the applicable rules and
regulations thereunder; provided that no representation or warranty is
made as to information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter specifically for inclusion therein (which information shall
be determined as set forth in Section 7(b) hereof) or that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the 1939 Act.
(iii) Accountants. PricewaterhouseCoopers LLP, whose report is
incorporated by reference in the Prospectus, are independent certified
public accountants within the meaning of the 1933 Act and the 1933 Act
Regulations. The financial statements and schedules (including the
related notes and supporting schedules) included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial condition, results of operations and changes in
financial condition of the entities purported to be shown thereby at
the dates and for the periods indicated and have been prepared in
accordance with generally accepted accounting principles.
(iv) Capital Stock of Subsidiaries. All of the issued shares
of capital stock of each significant subsidiary (as such term is
defined in Rule 405 of the 1933 Act Regulations) of the Company have
been duly and validly authorized and issued and are fully paid,
non-assessable (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 are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(v) Authorization and Validity of this Agreement. This
Agreement has been duly authorized, executed and delivered by the
Company and constitutes the valid and
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binding agreement of the Company and is enforceable against the Company
in accordance with its terms.
(vi) Authorization and Validity of the Securities. The Company
has all of the requisite corporate power and authority to execute,
issue and deliver the Securities and to incur and perform its
obligations provided for therein; the Securities have been duly
authorized by the Company and, when executed and authenticated in
accordance with the provisions of this Agreement, the Indenture and the
Supplemental Indenture and delivered to and paid for by the
Underwriters as provided for in this Agreement, will have been duly
executed, authenticated (assuming due authentication by the Trustee),
issued and delivered and will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture
and the Supplemental Indenture and enforceable against the Company in
accordance with their terms; and the Securities conform in all material
respects to the description thereof contained in the Prospectus.
(vii) Authorization and Validity of the Indenture and the
Supplemental Indenture. The Company has all of the requisite corporate
power and authority to execute and deliver the Indenture and the
Supplemental Indenture and to perform its obligations provided for
therein; the Indenture and the Supplemental Indenture have been duly
authorized by the Company and have been duly qualified under the 1939
Act, will be substantially in the form heretofore delivered to the
Underwriters and, upon due execution and delivery by the Company, and
assuming due execution and delivery by the Trustee, will constitute a
legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms; and the Indenture and the
Supplemental Indenture conforms in all material respects to the
descriptions thereof contained in the Prospectus.
(viii) Material Changes. Except as described in or
contemplated by the Prospectus, there has not been any material adverse
change in, or adverse development which materially affects, the
condition (financial or other), results of operations, assets, business
or prospects of the Company and its subsidiaries taken as a whole, from
the date as of which information is given in the Prospectus.
(ix) No Defaults; Regulatory Approvals. Neither the Company
nor any of its subsidiaries is, or with the giving of notice or lapse
of time or both would be, in violation of or in default under its
respective articles or certificate of incorporation or by-laws, or any
bond, debenture, note or any other
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evidence of indebtedness or any indenture, mortgage, deed of trust or
other material agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them is bound, or
to which any of their properties is subject, where such violation or
default would have a material adverse effect on the condition
(financial or other), results of operations, assets, business or
prospects of the Company and its subsidiaries taken as a whole. The
execution and delivery, fulfillment and consummation of the
transactions contemplated by this Agreement, the Indenture, the
Supplemental Indenture and the Securities will not conflict with or
constitute a breach of, or a default (with the passage of time or the
giving of notice or otherwise) under, or result in the imposition of a
lien on any properties of the Company or any of its subsidiaries, or an
acceleration of indebtedness pursuant to, the articles or certificate
of incorporation or by-laws of the Company or any of its subsidiaries,
or any bond, debenture, note or any other evidence of indebtedness of
any indenture, mortgage, deed of trust or other material agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them is bound, or to which any of the property
or assets of the Company or any of its subsidiaries is subject, or any
law, rule, administrative regulation, order or decree of any court or
any governmental agency or body having jurisdiction over the Company,
any of its subsidiaries or any of their respective properties. Except
for the orders of the SEC declaring the Registration Statement
effective under the 1933 Act and permits and similar authorizations
required under the securities or "Blue Sky" laws of certain
jurisdictions, no consent, approval, authorization or order of any
court, governmental agency or body or financial institution is required
in connection with the consummation of the transactions contemplated by
this Agreement, the Indenture, the Supplemental Indenture and the
Securities.
(x) Material Transactions. Subsequent to the respective dates
as of which information is given in the Registration Statement, any
Preliminary Prospectus and the Prospectus and prior to the date hereof,
neither the Company nor any of its subsidiaries has incurred or will
have incurred any liabilities or obligations for borrowed money, direct
or contingent, or entered into any transactions not in the ordinary
course of business which would have a material adverse effect on the
condition (financial or other), results of operations, assets, business
or prospects of the Company and its subsidiaries taken as a whole.
(xi) Property. The Company and each of its subsidiaries owns,
or has valid rights to use in the manner currently used or proposed to
be used, all items of real and personal property which are material and
which they reasonably believe are necessary to the business of the
Company and its subsidiaries taken as a whole (including without
limitation all U-Haul Centers, manufacturing facilities, assembly
facilities and service centers described or referred to in the
Prospectus), free and clear of all liens, encumbrances and claims which
may materially interfere with the use thereof or have a material
adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole.
(xii) Legal Proceedings; Contracts. Except as described in the
Prospectus, there is no litigation or governmental proceeding to which
the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is subject or which
is pending or, to the knowledge of the Company, contemplated against
the Company or any of its subsidiaries which might result in any
material adverse change in the condition (financial or other), results
of operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole; and there are no contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been filed as exhibits to the Registration Statement.
(xiii) Regulations. Neither the Company nor any of its
subsidiaries is in violation of any law, ordinance, governmental rule
or regulation or court decree to which it may be subject which might
have a material adverse effect on the condition (financial or other),
results of operations, assets, business or prospects of the Company and
its subsidiaries taken as a whole.
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(xiv) Licenses. All licenses, permits or registrations
required for the business of the Company and each of its subsidiaries,
as presently conducted and proposed to be conducted, under any Federal,
state or local laws, regulations or ordinances (including those related
to consumer protection, protection of the environment and regulation of
franchising) have been obtained or made, other than any such licenses,
permits or registrations, the failure of which to obtain or make,
either individually or in the aggregate, would not have a material
adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole, and each of the Company and its
subsidiaries is in compliance with all such licenses, permits or
registrations.
(xv) Environmental. Except as disclosed in the Prospectus, the
Company and its subsidiaries comply in all material respects with all
Environmental Laws (as defined below), except to the extent that
failure to comply with such Environmental Laws could not have a
material adverse effect on the condition (financial or other), results
of operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole. Except as disclosed in the Prospectus,
neither the Company nor any of its subsidiaries is the subject of any
pending or threatened federal, state or local investigation evaluating
whether any remedial action by the Company or any of its subsidiaries
is needed to respond to a release of any Hazardous Materials (as
defined below) into the environment, resulting from the Company's or
any of its subsidiaries' business properties or assets or is in
contravention of any Environmental Law that could have a material
adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole. Except as disclosed in the Prospectus,
neither the Company nor any of its subsidiaries has received any notice
or claim, nor are there pending or threatened lawsuits against them,
with respect to violations of any Environmental Law or in connection
with any release of any Hazardous Material into the environment that,
in the aggregate, if the subject of any unfavorable decision, ruling or
finding, could have a material adverse effect on the condition
(financial or other), results of operations, assets, business or
prospects of the Company and its subsidiaries taken as a whole. As used
herein, "Environmental Laws" means any federal, state or local law,
regulation, permit, rule or order of any governmental authority,
administrative body or court applicable to the Company's or any of its
subsidiaries' business operations or the ownership or possession of any
of their properties or assets relating to environmental matters, and
"Hazardous Materials" means those substances that are regulated by or
form the basis of liability under any Environmental Laws.
(xvi) Registration Rights. There are no contracts, agreements
or understandings between the Company and any person granting such
person the right to require the Company to include any securities owned
or to be owned by such person among the securities registered pursuant
to the Registration Statement, or, except as described in the
Prospectus or in Schedule IV to this Agreement, to require the Company
to file any other registration under the 1933 Act (other than a
registration statement on Form S-8) with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in any securities being registered
pursuant to any other registration statement filed by the Company under
the 1933 Act.
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(xvii) Certain Relationships. No relationship, direct or
indirect, exists between or among the Company, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company, on the other hand, which is required to be described in the
Prospectus and which is not so described.
(xviii) Investment Company Act. The Company is not required to
be registered, and is not regulated, as an "investment company" as such
term is defined under the Investment Company Act of 1940, as amended,
and the rules and regulations thereunder (collectively, the "Investment
Company Act").
(b) Any certificate signed by any director or officer of the Company or
any of its Subsidiaries and delivered to any Underwriter or to counsel for the
Underwriters in connection with any offering of Securities shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby on the date of such certificate.
SECTION 2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto,
the principal amount of the Securities set forth opposite such Underwriter's
name in Schedule II hereto, except that, if Schedule I hereto provides for the
sale of Securities pursuant to delayed delivery arrangements, the respective
principal amounts of Securities to be purchased by the Underwriters hereunder
shall be as set forth in Schedule II. Securities to be purchased by the
Underwriters are herein sometimes called the "Underwriters' Securities."
SECTION 3. Delivery and Payment.
Delivery of and payment for the Underwriters' Securities shall be made
on the date and at the time specified in Schedule I hereto (or such later date
not later than five business days after such specified date as the
Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
12 hereof (such date and time of delivery and payment for the Underwriters'
Securities being herein called the "Closing Date"). The Underwriters and the
Company have determined that it is not feasible to close at an earlier date.
Delivery of the Underwriters' Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company in same day funds, in which case the Company
will reimburse the Representatives for their cost of obtaining such funds.
Delivery of the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
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The Company agrees to have the Underwriters' Securities available for
inspection by the Representatives in New York, New York, not later than 1:00 PM
on the business day prior to the Closing Date.
SECTION 4. Covenants of the Company.
The Company covenants with the Representatives and with each
Underwriter participating in the offering of Securities, as follows:
(a) Notice of Certain Events. The Company will notify the
Representatives immediately (i) of the time when the Registration Statement or
any amendment thereto becomes effective or promptly after the filing of any
supplement or amendment to the Preliminary Prospectus or the Prospectus (other
than any Incorporated Document or any amendment or supplement relating to an
offering of securities other than the Securities); (ii) of the transmittal to
the SEC for filing of any supplement to the Preliminary Prospectus or the
Prospectus relating to the Securities or any document to be filed pursuant to
the 1934 Act which will be incorporated by reference in the Prospectus; (iii) of
the receipt of any comments from the SEC with respect to the Registration
Statement, the Preliminary Prospectus or the Prospectus; (iv) of any request by
the SEC for any amendment to the Registration Statement or any amendment or
supplement to the Preliminary Prospectus or the Prospectus relating to the
Securities or for additional information; (v) of the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; (vi) of any downgrading in the
rating accorded the Securities or any other debt securities of the Company, or
any proposal to downgrade the rating of the Securities or any other debt
securities of the Company, by any "nationally recognized statistical rating
organization," as that term is defined by the SEC for purposes of Rule 436(g)(2)
of the 1933 Act Regulations, or of any public announcement that any such
organization has under surveillance or review, with possible negative
implications, its rating of the Securities or any of the Company's debt
securities promptly after the Company learns of such downgrading, proposal to
downgrade or public announcement; and (vii) of the receipt by the Company of any
notification with respect to the suspension of qualification of the Securities
for sale in any jurisdiction or the initiation or threatening of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order or notice of suspension of qualification and, if
issued, to obtain the lifting thereof as soon as possible.
(b) Notice of Certain Proposed Filings. The Company will give the
Representatives advance notice of its intention to file or prepare any
additional registration statement with respect to any amendment to the
Registration Statement or any amendment or supplement to the Preliminary
Prospectus or the Prospectus relating to the Securities, whether by the filing
of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and will
furnish the Representatives with copies of any such amendment or supplement or
other documents proposed to be filed or used a reasonable time in advance of
such proposed filing or use, as the case may be, and will not file any such
amendment or supplement or other documents in a form to which the
Representatives or counsel for the Underwriters shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to each Representative as many signed and conformed copies
of the Registration
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Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents filed
pursuant to the 1934 Act and incorporated by reference in the Preliminary
Prospectus and the Prospectus) as such Representative may reasonably request.
The Company will furnish to each Representative as many copies of the
Preliminary Prospectus and the Prospectus (as amended or supplemented) as such
Representative shall reasonably request so long as such Representative is
required to deliver a Preliminary Prospectus or Prospectus in connection with
sales or solicitations of offers to purchase the Securities. The Registration
Statement, Preliminary Prospectus and Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the SEC pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(d) Filing of Amendments. The Company will file promptly with the SEC
any amendment to the Registration Statement or the Prospectus or any supplement
to the Prospectus that may be required by the 1933 Act or in the reasonable
judgment of the Company or the Representatives or that may be requested by the
SEC.
(e) Copies of Amendments. Prior to filing with the SEC any (i)
amendment to the Registration Statement or supplement to the Prospectus required
by the 1933 Act Regulations or (ii) Prospectus required pursuant to Rule 424
(other than any Incorporated Document or any amendment or supplement relating to
an offering of securities other than the Securities), and promptly after filing
with the SEC any Incorporated Document or any amendment to any Incorporated
Document, the Company will furnish a copy thereof to the Representatives and
counsel for the Underwriters.
(f) Copies of Public Reports and Required Filings. For a period
expiring on the last date on which any Note sold pursuant to this Agreement is
outstanding, the Company will furnish to the Representatives copies of all
materials furnished by the Company to its security holders and all public
reports and all reports and financial statements furnished by the Company to the
principal national securities exchanges upon which the securities of the Company
may be listed pursuant to requirements of or agreements with such exchanges or
to the SEC pursuant to the 1934 Act or the rules and regulations of the SEC
under 1934 Act (the "1934 Act Regulations").
(g) Revisions of Prospectus - Material Changes. Except as otherwise
provided in this subsection, if at any time during the term of this Agreement
any event shall occur or condition exist as a result of which it is necessary,
in the reasonable opinion of counsel for the Underwriters or counsel for the
Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given by telephone,
and confirmed in writing, to the Representatives and the Company will (i)
subject to the first sentence of Section 4(a) hereof promptly amend or
supplement the Registration Statement and the Prospectus, whether by filing
documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and
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Prospectus comply with such requirements and (ii) furnish to the
Representatives, without charge, such number of prices of such amendment or
supplement as the Representatives may reasonably request.
(h) Earnings Statements. The Company will make generally available to
its security holders and the Representatives as soon as practicable, but not
later than 18 months after the date of each acceptance by the Company of an
offer to purchase Securities, an earnings statement of the Company and its
subsidiaries conforming with the requirements of Section 11(a) of the 1933 Act
(including, at the option of the Company, Rule 158 of the 1933 Act), covering
each twelve month period commencing after the later of (i) the effective date of
the Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of such acceptance and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the SEC prior to the date of such
acceptance.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
with such Representatives, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Representatives may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Securities; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the Securities have
been qualified as above provided.
(j) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the 1934 Act within the prescribed time periods therefor.
(k) Restriction on Sale of Securities. Until the Closing Date, the
Company will not (i) without the consent of the Representatives, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or announce
the offering of, any debt securities issued or guaranteed by the Company (other
than the Securities) that mature more than one year after the Closing Date and
that are publicly offered to investors or offered to investors in reliance upon
Rule 144A under the 1933 Act, or (ii) without notifying the Representatives,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities issued or
guaranteed by the Company (other than the securities described in the preceding
clause (i)); provided, however, that the foregoing covenant shall not apply to
(A) any medium-term note program of the Company and (B) any sale and leaseback
financing with respect to rental trucks, trailers and related equipment used by
the Company in its operations.
(l) Investment Company Act. The Company will take such steps as shall
be necessary to ensure that neither the Company nor any subsidiary shall become
an "investment company" within the meaning of such term under the Investment
Company Act.
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SECTION 5. Conditions of Underwriters' Obligations.
The obligations of any Underwriter to purchase the Underwriters'
Securities on the Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company herein and to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Stop Order and Effectiveness. The Prospectus as amended or
supplemented with respect to the Securities shall have been filed with the SEC
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the 1933 Act Regulations and in accordance with Section 4(a) hereof;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof nor any order directed to any document incorporated by reference in
any Prospectus shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the SEC; and any request of the SEC for
inclusion of additional information in the Registration Statement or any
Prospectus or otherwise shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. No order suspending the sale of the
Securities in any jurisdiction designated by the Underwriters pursuant to
Section 4(i) hereof shall have been issued, and no proceeding for that purpose
shall have been initiated or threatened.
(b) Statements Within Registration Statement or Prospectus. No
Underwriter shall have discovered and disclosed to the Company that the
Registration Statement or any Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of counsel for the
Underwriters, is material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(c) Corporate Proceedings; Legal Matters. All corporate proceedings and
other legal matters incident to the authorization, form and validity of this
Agreement, the Indenture, the Supplemental Indenture, the Securities, the
Registration Statement and each Prospectus, and all other legal matters relating
to this Agreement, and the transactions contemplated hereby and thereby, shall
be satisfactory in all material respects to counsel for the Underwriters, and
the Company shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
(d) Legal Opinions. On the Closing Date, the Underwriters shall have
received the following legal opinions, dated the Closing Date and in form and
substance satisfactory to the Underwriters:
(1) Opinion of Company Counsel. The opinion, addressed to the
Representatives, of Xxxxx & Xxxxxx L.L.P., counsel for the Company, to
the effect that:
(i) each of the Company, Oxford Life Insurance
Company, an Arizona corporation and Republic Western Insurance
Company, an Arizona corporation, has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Nevada or the State of Arizona,
as the case may be, with full corporate power and authority to
own its properties and
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conduct its business as described in the Prospectus and to
carry out the transactions contemplated hereunder, and each of
the Nevada Companies (as hereinafter defined) is duly
qualified to do business as a foreign corporation and is in
good standing under the laws of the State of Arizona;
(ii) the Company's authorized, issued and outstanding
capital stock is as set forth in the Prospectus; the
Securities conform to the description thereof contained in the
Prospectus;
(iii) each of the Indenture and the Supplemental
Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the 1939 Act,
and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
except that (a) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally, (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court
before which any proceedings therefor may be brought, and (c)
the enforceability hereof is further subject to the
qualification that certain waivers, procedures, remedies, and
other provisions hereof may be unenforceable under, or limited
by, the law of the State of Arizona; however, such limitations
do not, in our opinion, substantially prevent the practical
realization of the benefits intended hereof; and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of this
Agreement, the Indenture and the Supplemental Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters' Securities, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and the Supplemental
Indenture, except that (x) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally, (y) the remedy of specific
performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of
the court before which any proceedings therefor may be
brought, and (z) the enforceability hereof is further subject
to the qualification that certain waivers, procedures,
remedies, and other provisions hereof may be unenforceable
under, or limited by, the law of the State of Arizona;
however, such limitations do not, in our opinion,
substantially prevent the practical realization of the
benefits intended hereof;
(iv) to the best knowledge of such counsel, there is
no franchise, contract or other document of a character
required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not
described or filed as required; and the statements included or
incorporated in the Prospectus describing any legal
proceedings or material contracts or agreements relating to
the Company fairly summarize such matters;
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(v) the Registration Statement has become effective
under the 1933 Act; any required filing of the basic
Prospectus, any Preliminary Prospectus and the Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Prospectus (other than with respect to financial
statements and other financial and statistical information, as
to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the 1933 Act, the 1934 Act and the 1939 Act and the
applicable rules and regulations thereunder; and such counsel
has no reason to believe that at the Effective Date the
Registration Statement (other than with respect to financial
statements and other financial and statistical information, as
to which such counsel need express no opinion) contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus (other than with respect to financial statements
and other financial and statistical information, as to which
such counsel need express no opinion) at its date or at the
Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated herein, except
such as have been obtained under the 1933 Act and such as may
be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(viii) neither the execution and delivery of the
Indenture or the Supplemental Indenture or the issuance and
sale of the Securities nor the consummation of any other of
the transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof, will (a) conflict
with the articles or certificate of incorporation or by-laws
of the Company or any of its subsidiaries or (b) result in a
breach or violation of or constitute a default under any law
or any bond, debenture, note or any other evidence of
indebtedness of any indenture, mortgage, deed of trust or
other material agreement or instrument known to such counsel
and to which the Company or any of its subsidiaries is a party
or bound or violation of any judgment, order or decree known
to such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries, except (with
regard to clause (b)) for such
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breaches, violations or defaults as would not have a material
adverse effect on the condition (financial or other), results
of operations, assets, business or prospects of the Company
and its subsidiaries taken as a whole;
(ix) each of the Indenture, the Supplemental
Indenture and the Securities conform in all material respects
to the descriptions thereof contained in the Prospectus;
(x) an Arizona court would give effect to the choice
of New York law in the Indenture and the Supplemental
Indenture; and
(xi) the Company is not, and is not directly or
indirectly controlled by, or acting on behalf of any person or
entity which is, an "investment company" within the meaning of
the Investment Company Act.
In rendering such opinion, such counsel may rely, (A)
as to matters involving the application of laws of any
jurisdiction other than the State of Arizona, the State of
Nevada or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel
of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters, (B) as to
matters involving the application of the laws of the State of
Nevada, upon the opinion delivered pursuant to Section 5(d)(2)
hereof, and (C) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company
and public officials. Such counsel may assume, for the
purposes of such opinion and without investigation, that the
substantive laws of the State of New York do not materially
differ from the substantive laws of the State of Arizona, and
such counsel need express no opinion as to the laws of New
York or their applicability to the matters covered by such
opinion. References to the Prospectus in this Section 5(d)(1)
include any supplements thereto at the Closing Date.
(2) Opinion of Company's Nevada Counsel. The opinion,
addressed to Xxxxx & Xxxxxx L.L.P. and the Representatives, of Lionel,
Xxxxxx & Xxxxxxx, counsel for the Company, to the effect that:
(i) each of the Company, Amerco Real Estate Company,
a Nevada corporation, and U-Haul International, Inc., a Nevada
corporation (collectively, the "Nevada Companies"), has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Nevada, with full
corporate power and authority to own its properties and
conduct its business as described in the Prospectus and to
carry out the transactions contemplated hereunder and in the
Prospectus;
(ii) each of the Indenture and the Supplemental
Indenture has been duly authorized, executed and delivered by
the Company and (assuming, in reliance upon the opinion
delivered pursuant to Section 5(d)(4) hereof, that each of the
Indenture and the Supplemental Indenture is a legal, valid and
binding instrument enforceable against all parties thereto
under the laws of New York) constitutes a
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legal, valid and binding instrument enforceable against the
Company in accordance with its terms, except that (a) the
enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court
before which any proceedings therefor may be brought; and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of this
Agreement, the Indenture and the Supplemental Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters' Securities, will
constitute legal, valid and binding obligations of the Company
(assuming, in reliance upon the opinion delivered pursuant to
Section 5(d)(4) hereof, that each of the Securities is a
legal, valid and binding instrument enforceable against all
parties thereto under the laws of New York), except that (x)
the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (y) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court
before which any proceedings therefor may be brought;
(iii) no consent, approval, authorization or order of
any court or governmental agency or body of the State of
Nevada is required for the consummation of the transactions
contemplated herein, except such as may be required under the
blue sky laws of the State of Nevada in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such
opinion) as have been obtained;
(iv) neither the execution and delivery of the
Indenture or the Supplemental Indenture or the issuance and
sale of the Securities nor the consummation of any other of
the transactions herein or therein contemplated nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of or constitute a default
under any law or the articles or certificate of incorporation
or by-laws of the Company or any of the Nevada Companies or
any bond, debenture, note or any other evidence of
indebtedness of any indenture, mortgage, deed of trust or
other material agreement or instrument known to such counsel
and to which the Company or any of the Nevada Companies is a
party or bound or any judgment, order or decree known to such
counsel to be applicable to the Company or any of the Nevada
Companies of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of the Nevada Companies; and
(v) A Nevada court would give effect to the choice of
New York law in the Indenture and the Supplemental Indenture.
As used therein, the phrase "known to counsel" shall
mean only such actual knowledge as such counsel has obtained
from consultation with attorneys presently
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in its firm from whom it has determined are likely, in the
ordinary course of their respective duties, to have knowledge
of the matters covered by such opinions. Except as expressly
provided otherwise therein, it has not conducted any other
investigation or review in connection with the opinions
rendered therein, including without limitation a review of any
of its files or the files of the Nevada Companies.
Such counsel may further assume information as to
certain contacts between the jurisdictions of New York and the
transactions contemplated by the Securities, the Indenture and
the Supplemental Indenture, including the following:
(a) substantial negotiations relating to
such transactions have taken place in the State of
New York,
(b) the Company is executing and delivering
the Securities, the Indenture and the Supplemental
Indenture in New York in connection with the
restructuring of certain of its indebtedness and for
certain other lawful and authorized ends,
(c) the Company's financial advisor, as well
as the external counsel representing the Underwriters
in connection with such transactions, have offices in
the State of New York, and negotiations in connection
with such transactions have taken place in certain of
their offices, including such offices in New York,
and
(d) the Underwriters are located or have
offices in the State of New York.
In rendering such opinion, such counsel may rely, (A)
as to matters involving the application of laws of any
jurisdiction other than the State of Nevada or the United
States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel
for the Underwriters, (B) as to matters involving the laws of
the State of Arizona, upon the opinion delivered pursuant to
Section 5(d)(1) hereof, (C) as to matters involving the laws
of the State of New York, upon the opinion delivered pursuant
to Section 5(d)(4) hereof, and (D) as to matters of fact, to
the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to
the Prospectus in this Section 5(d)(2) include any supplements
thereto at the Closing Date.
(3) Opinion of General Counsel to the Company. The opinion,
addressed to the Representatives, of Xxxx X. Xxxxxxxxxxx, Secretary and
General Counsel of the Company to the effect that:
(i) each of the Company and its subsidiaries has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in
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good standing under the laws of each jurisdiction which
requires such qualification wherein it owns or leases material
properties or conducts material business;
(ii) all the outstanding shares of capital stock of
each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Prospectus, all
outstanding shares of capital stock of the subsidiaries are
owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest
or any other security interests, claims, liens or
encumbrances;
(iii) there is no pending or threatened action, suit
or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or
any of its subsidiaries of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit, which is not described or filed
as required; and the statements included or incorporated in
the Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
(iv) neither the execution and delivery of the
Indenture or the Supplemental Indenture or the issuance and
sale of the Securities nor the consummation of any other of
the transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof, will conflict
with, result in a breach or violation of or constitute a
default under any law or the articles or certificate of
incorporation or by-laws of the Company or any of its
subsidiaries or any bond, debenture, note or any other
evidence of indebtedness of any indenture, mortgage, deed of
trust or other material agreement or instrument and to which
the Company or any of its subsidiaries is a party or bound or
any judgment, order or decree to be applicable to the Company
or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(v) to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose
have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the 1933 Act, the 1934 Act and the
1939 Act and the applicable rules and regulations thereunder;
and such counsel has no reason to believe that at the
Effective Date the Registration Statement (other than the
financial statements and other financial and statistical
information contained therein, as to which such
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counsel need express no opinion) contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
(other than the financial statements and other financial and
statistical information contained therein, as to which such
counsel need express no opinion) at its date or at the Closing
Date included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(4) Opinion of Counsel to the Underwriters. The opinion,
addressed to the Underwriters, of Milbank, Tweed, Xxxxxx & XxXxxx LLP,
counsel for the Underwriters, with respect to the issuance and sale of
the Securities, the Indenture, the Supplemental Indenture, the
Registration Statement, the Prospectus (together with any supplement
thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(e) Officer's Certificate. On the Closing Date, the Underwriters shall
have received a certificate of the Chairman of the Board or the President and
the principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Prospectus, any supplement to the Prospectus and
this Agreement and that: (i) since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement thereto),
there has not been any material adverse change in the condition (financial or
other) results of operations, assets, business or prospects of the Company and
its subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto); (ii) the other representations
and warranties of the Company contained in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of the Closing
Date and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the Closing
Date; (iii) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date of such certificate; (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the SEC; and (v) no order suspending the
sale of the Securities in any jurisdiction designated by the Underwriters has
been issued and, to their knowledge, no proceedings for that purpose have been
initiated or threatened.
(f) Comfort Letter. On the date hereof and the Closing Date, the
Company shall furnish customary comfort letters addressed to the
Representatives, dated the date hereof and the Closing Date, in form and
substance satisfactory to the Representatives, from PricewaterhouseCoopers LLP,
independent public accountants, containing the statements and information of the
type ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information relating
to the Company contained or incorporated by reference into the Registration
Statement and the Prospectus.
(g) Changes Affecting the Securities. Subsequent to the date hereof or,
if earlier, dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change in the capital
stock or long-term debt of the Company and its subsidiaries, taken as a whole,
or (ii) any change in or affecting the condition (financial or other), results
of operations, assets, business or prospects of the Company and its
subsidiaries, taken as a whole, which in any case
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referred to in clause (i) or (ii) above, in the judgment of the Representatives,
materially impairs the investment quality of the Securities.
(h) Credit Downgrade. Prior to the Closing Date, there shall not have
been any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the 0000 Xxx) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
(i) Other Documents. Prior to the Closing Date, counsel to the
Representatives shall have been furnished with such documents and opinions as
such counsel may reasonably require for the purpose of enabling such counsel to
pass upon the issuance and sale of Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Securities as herein contemplated shall be satisfactory
in form and substance to the Representatives and to counsel to the Underwriters.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section 4(h) hereof, the provisions concerning payment of expenses under Section
9 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8
hereof, the provisions concerning the representations, warranties and agreements
to survive delivery pursuant to Section 10 hereof, the provisions relating to
governing law set forth in Section 14 hereof and the provisions set forth under
"Parties" of Section 15 hereof shall remain in effect.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Milbank, Tweed, Xxxxxx & XxXxxx LLP at 0 Xxxxx
Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
SECTION 6. Reimbursement of Underwriters' Expenses.
If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied, because of any termination pursuant to
Section 11 hereof or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities, including in connection with this Agreement and with any
investigation or preparation made by them in respect of the
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marketing of the Securities or in contemplation of the performance by them of
their obligations hereunder.
SECTION 7. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage or
expense whatsoever, joint or several, as incurred, arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or the omission
or alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
the Preliminary Prospectus (or any amendment or supplement thereto) or
the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, unless such untrue statement or omission or
such alleged untrue statement or omission was made in reliance upon and
in conformity with written information furnished to the Company
through, by or on behalf of any of the Underwriters expressly for use
in the Registration Statement, the Preliminary Prospectus or the
Prospectus;
(ii) against any and all loss, liability, claim, damage or
expense whatsoever, joint or several, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever arising out of or based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, joint or
several, as incurred (including the fees and disbursements of counsel
chosen by the Representatives), reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever arising out of or based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
including the Rule 430A Information and the Rule 434 Information deemed to be a
part thereof, if applicable, or the Prospectus or in any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representative
specifically for inclusion
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therein (which information shall be determined as set forth in Section 7(b)
hereof); and provided, further, that as to any Preliminary Prospectus or
supplement thereto this indemnity agreement shall not inure to the benefit of
any Underwriter, the directors, officers, employees and Underwriters of each
Underwriter or any person controlling that Underwriter on account of any loss,
claim, damage, liability or action arising from the sale of Securities to any
person by that Underwriter if that Underwriter failed to send or give a copy of
the Prospectus, as the same may be amended or supplemented, to that person
within the time required by the 1933 Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such Preliminary Prospectus or supplement thereto was corrected
in that Prospectus, unless such failure resulted from non-compliance by the
Company with Section 4(c) hereof. For purposes of the second proviso to the
immediately preceding sentence, the term Prospectus shall not be deemed to
include the documents incorporated by reference therein, and no Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in a Preliminary Prospectus or supplement thereto or
the Prospectus to any person other than a person to whom such Underwriter has
delivered such incorporated documents in response to a written request therefor.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any controlling person of
that Underwriter.
(b) Indemnification of Company. Each Underwriter, severally and not
jointly, agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage or
expense described in the indemnity contained in Section 7(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, the Preliminary
Prospectus (or any amendment or supplement thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company through, by or on behalf of such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), the Preliminary Prospectus (or any amendment or supplement thereto) or
the Prospectus (or any amendment or supplement thereto). The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to the Company or any such director, officer or controlling person.
(c) General. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
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SECTION 8. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 7 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Underwriters, as incurred,
in such proportions so that each Underwriter is responsible for that portion
represented by the percentage that the total commission or underwriting discount
received by such Underwriter in respect of the offering of Securities from which
such loss, liability, claim, damage and expense arise, to the date of such loss,
liability, claim, damage and expense bears to the total sales price of such
Securities from the sale to or through such Underwriter, and the Company is
responsible for the balance; provided, however, that (i) in no case shall an
Underwriter be responsible for any amount in excess of the commissions and
underwriting discounts received by such Underwriter in connection with the
Securities from which such losses, liabilities, claims, damages and expenses
arise and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company. Each
Underwriter's obligation to contribute as provided in this Section 8 are several
and not joint.
SECTION 9. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement
and all amendments thereto, the Preliminary Prospectus and the
Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery of the
Securities, including any fees and expenses relating to the use of
book-entry Securities;
(d) The fees and disbursements of the Company's accountants
and counsel, of the Trustees and their counsel, and of any transfer
agent or registrar;
(e) The qualification of the Securities under state securities
laws in accordance with the provisions of Section 4(i) hereof,
including filing fees and the reasonable fees and disbursements of
counsel for the Underwriter in connection therewith
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and in connection with the preparation and printing of any Blue Sky
Survey and any Legal Investment Survey;
(f) The printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement, of the Preliminary Prospectus, of the Prospectus and any
amendments or supplements thereto, and any documents incorporated by
reference and the delivery by the Underwriters of the Prospectus and
any amendments or supplements thereto in connection with solicitations
or confirmations of sales of the Securities;
(g) The preparation, printing, reproducing and delivery to the
Underwriters of copies of the Indenture, the Supplemental Indenture and
all amendments thereto;
(h) Any fees charged by rating agencies for the rating of the
Securities;
(i) The fees and expenses incurred in connection with the
listing of the Securities on any securities exchange;
(j) The fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the
Underwriters incurred with the approval of the Company;
(l) The cost of providing any CUSIP or other identification
numbers for the Securities; and
(m) The fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Securities.
SECTION 10. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or any
controlling person of the Underwriter, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Securities. The
provisions of Section 7, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
SECTION 11. Termination.
(a) Termination; General.
Any Representative may terminate this Agreement hereunder immediately
upon notice to the Company, at any time prior to the Closing Date (i) if there
has been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change, or any
development involving a prospective material adverse change, in the condition
(financial or other) or results of operations, assets, business or prospects of
the Company and its subsidiaries taken as a whole, whether or not arising in the
ordinary course of
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business, or (ii) if there shall have occurred any material adverse change in
the financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis the effect of
which is such as to make it, in the judgment of such Representative,
impracticable to market the Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been
suspended by the SEC, a national securities exchange or the NASDAQ National
Market System, or if trading generally on either the American Stock Exchange or
the New York Stock Exchange or the NASDAQ National Market System shall have been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said
exchanges, the NASDAQ National Market System or by order of the SEC or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities or if a banking moratorium shall have
been declared by the Federal or New York authorities, or (iv) if there is any
downgrading in the rating accorded the debt securities of the Company, including
the Securities, by any "nationally recognized statistical rating organization"
as that term is defined by the SEC for purposes of Rule 436(g)(2) under the 1933
Act or if any such rating organization shall have publicly announced that it has
placed any of such debt securities on what is commonly termed a "watch list" for
possible downgrading, or (v) if there shall have come to such Representative's
attention any facts that would cause such Representative to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of
Securities, included an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light of
the circumstances existing at the time of such delivery, not misleading.
(b) Liabilities. In the event of any such termination pursuant to this
Section 11, neither party will have any liability to the other party hereto,
except that the covenants set forth in Section 4 hereof, the provisions of
Section 9 hereof, the indemnity and contribution agreements set forth in
Sections 7 and 8 hereof, and the provisions of Sections 10, 14 and 15 hereof
shall remain in effect.
SECTION 12. Defaulting Underwriters.
If, on the Closing Date, any Underwriter defaults in the performance of
its obligations under this Agreement, the non-defaulting Underwriter may make
arrangements for the purchase of the Securities which such defaulting
Underwriter agreed but failed to purchase by other persons satisfactory to the
Company and the non-defaulting Underwriter, but if no such arrangements are made
within 24 hours after such default, this Agreement shall terminate without
liability on the part of the non-defaulting Underwriter or the Company, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Sections 6 and 9 hereof and except that the provisions of
Sections 7 and 8 hereof shall not terminate and shall remain in effect. As used
in this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context otherwise requires, any party not listed in
Schedule II hereof that, pursuant to this Section 12, purchases Securities which
a defaulting Underwriter agreed but failed to purchase.
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SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
transmitted by any standard form of telecommunication, and any such notice shall
be effective when received at the address specified below. Notice to the Company
shall be directed to AMERCO, 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxx, Xxxxxx
00000-0000, Attention: Xxxx Xxxxxx, facsimile number: (000) 000-0000, with a
copy to Xxxxx & Xxxxxx L.L.P., Xxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000,
Attention: Xxxxxxx Xxxxxxx, facsimile number (000) 000-0000; notice to the
Representatives shall be directed to the addresses specified in Schedule I
hereto; or notice shall be directed to such other address as such party may
designate from time to time by notice duly given in accordance with the terms of
this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State without
giving effect to principles of conflicts of law. Any suit, action or proceeding
brought by the Company against the Underwriters in connection with or arising
under this Agreement shall be brought solely in the state or federal court of
appropriate jurisdiction located in the Borough of Manhattan, The City of New
York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Representatives and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 7 and 8 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. Effect of Headings.
The Article and Section heading herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 17. Counterparts.
This Agreement may be executed by one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original, and
all such respective counterparts shall together constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
among the several Underwriters and the Company in accordance with its terms.
Very truly yours,
AMERCO
By: /s/ Xxxx X. Xxxxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Secretary and
General Counsel
The forgoing Agreement is hereby confirmed and accepted as of the date specified
in Schedule I hereto.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: /s/ Xxxx XxXxxxxxx
------------------------
Name: Xxxx XxXxxxxxx
Title: Managing Director
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxx Xxxxx
------------------------
Name: Xxxx Xxxxx
Title: Vice President
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Schedule I
Underwriting Agreement dated March 26, 1999
Registration Statement No.: 333-73357
Representatives: NationsBanc Xxxxxxxxxx Securities LLC
NationsBanc Xxxxxxxxx Xxxxxx
XX 0000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx X. XxXxxxxxx
Fax: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Fax: (000)-000-0000
Title, Purchase Price and Description of Securities:
Title: 7.20% Senior Notes due 2002
Principal amount: $150,000,000
Purchase price (include accrued interest or amortization, if any): 99.79%
Sinking fund provisions: None
Redemption provisions: At the Company's option, on at least 30 days'
notice, at the redemption price and on terms as
set forth in greater detail in the Supplemental
Indenture.
Other provisions: The Securities are subject to repurchase at the
option of the holders thereof in the event of a
change in control of the Company as set forth in
greater detail in the Supplemental Indenture.
Closing Date, Time and Location: April 5, 1999 at 10:00 A.M.
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
31
Schedule II
Principal Amount
of Securities to
Underwriters be Purchased
NationsBanc Xxxxxxxxxx Securities LLC....................... $105,000,000
Xxxxxx Xxxxxxx & Co. Incorporated........................... 45,000,000
------------
Total $150,000,000
============
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Schedule III
List of Significant Subsidiaries pursuant to Section 1(a)(i)
Amerco Real Estate Company
Oxford Life Insurance Company
Republic Western Insurance Company
U-Haul International, Inc.
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Schedule IV
List of Agreements to Register Securities
1. Share Repurchase and Registration Rights Agreement, dated as of March
1, 1992, among AMERCO, Xxxx X. Xxxxx and PAFRAN, INC.
2. Preferred Stock Purchase Agreement, dated August 30, 1996, between
AMERCO and Blue Ridge Investments, L.L.C.
3. Registration Rights Agreement, dated as of August 30, 1996, between
AMERCO and NationsBank Corporation.
4. Registration Rights Agreement, dated as of November 30, 1998 between
AMERCO and NationsBank, N.A.
4
