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Exhibit 1.1
Execution Copy
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AMERCO
(a Nevada corporation)
$200,000,000
8.80% Senior Notes Due 2005
UNDERWRITING AGREEMENT
January 27, 2000
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TABLE OF CONTENTS
Page
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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.............................. 9
(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................... 10
(g) Revisions of Prospectus - Material Changes...................... 10
(h) Earnings Statements............................................. 10
(i) Blue Sky Qualifications......................................... 10
(j) 1934 Act Filings................................................ 11
(k) Restriction on Sale of Securities............................... 11
(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.......... 12
(c) Corporate Proceedings; Legal Matters............................ 12
(d) Legal Opinions.................................................. 12
(e) Officer's Certificate........................................... 19
(f) Comfort Letter.................................................. 19
(g) Changes Affecting the Securities................................ 19
(h) Credit Downgrade................................................ 19
(i) Other Documents................................................. 20
SECTION 6. Reimbursement of Underwriters' Expenses......................... 20
SECTION 7. Indemnification................................................. 21
(a) Indemnification of the Underwriters............................. 21
(b) Indemnification of Company...................................... 22
(c) General......................................................... 22
SECTION 8. Contribution.................................................... 23
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......................................................... 26
SECTION 14. Governing Law................................................... 26
SECTION 15. Parties......................................................... 26
SECTION 16. Effect of Headings.............................................. 26
SECTION 17. Counterparts.................................................... 27
(ii)
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AMERCO
8.80% Senior Notes Due 2005
UNDERWRITING AGREEMENT
January 27, 2000
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 Second Supplemental Indenture, to be dated as of the Closing Date (as
hereinafter defined), between the Company and the Trustee (the "Second
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.
$200,000,000 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
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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 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
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Schedule III to this Agreement, is a "significant subsidiary," as such
term is defined in Rule 405 of the 1933 Act Regulations.
(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; neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement
was issued and at the Closing Date, included or will include an untrue
statement of a material fact or omitted or will 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 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
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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 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 Second 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 Second 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 Second
Supplemental Indenture. The Company has all of the requisite corporate
power and authority to execute and deliver the Indenture and the Second
Supplemental Indenture and to perform its obligations provided for
therein; the Indenture and the Second 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 Second
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 (exclusive of any amendment or supplement thereto), 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 evidence of indebtedness or any indenture, mortgage,
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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 Second 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
Second 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 (exclusive of any amendments), 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
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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.
(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 (exclusive
of any amendments or supplements), 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 (exclusive of any amendments or supplements), 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 (exclusive of any amendments or supplements), 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"
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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.
(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
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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.
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.
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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 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
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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 when a prospectus is required to be
delivered in connection with sales of the Securities 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(b) 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 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.
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(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.
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 Second
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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 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 Second 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 Second
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 Second Supplemental Indenture,
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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;
(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 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
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
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
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the 1939 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 Second 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 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 Second 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 Second 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 the laws of the State of
Nevada, upon the opinion delivered pursuant to Section 5(d)(2)
hereof and (B) 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.
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(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 Second 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 Second Supplemental Indenture is a legal, valid and binding
instrument enforceable against all parties thereto under the laws of
New York) 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 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 Second 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;
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(iv) neither the execution and delivery of the Indenture or
the Second 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 Second 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 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 Second
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 Second 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.
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In rendering such opinion, such counsel may rely, (A) as to
matters involving the laws of the State of Arizona, upon the opinion
delivered pursuant to Section 5(d)(1) hereof, (B) as to matters
involving the laws of the State of New York, upon the opinion
delivered pursuant to Section 5(d)(4) hereof, and (C) 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 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 Second 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
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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 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
information contained therein, 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 the financial statements and other financial
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 Second 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
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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, respectively, 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 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
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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 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
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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 therein; 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
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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.
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.
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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 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 Second 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
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(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 (exclusive
of any amendments or supplements), 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 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
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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.
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
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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 Xxxxxx
_______________________________
Name: Xxxx Xxxxxx
Title: Treasurer
CONFIRMED and ACCEPTED as of the date specified in Schedule I hereto.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CHASE SECURITIES INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ Xxxxxx X. Xxxxxx
_________________________________________
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule II hereto.
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Schedule I
Underwriting Agreement dated January 27, 2000
Registration Statement No.: 333-73357
Representatives: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
With a copy of all noticues pursuant to Section 7(c) to:
1 Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
Title, Purchase Price and Description of Securities:
Title: 8.80% Senior Notes due 2005
Principal amount: $200,000,000
Purchase price (include accrued interest or amortization, if any): 99.075%
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 Second
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 Second Supplemental
Indenture.
Closing Date, Time and Location: February 4, 2000 at 10:00 A.M.
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
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Schedule II
Principal Amount
of Securities to
Underwriters be Purchased
------------ ------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated..................................... $130,000,000
Chase Securities Inc......................................... 70,000,000
------------
Total................ $200,000,000
============
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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.
