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EXHIBIT 1.1
AMERCO
Debt Securities
UNDERWRITING AGREEMENT -- BASIC PROVISIONS
________ __, 1996
1. Introductory. AMERCO, a Nevada corporation (the "Company"),
proposes to issue and sell from time to time senior debt securities (the
"Securities") registered under the registration statement referred to in Section
2(a) hereof. The Securities will be issued under one or more indentures (as
amended or supplemented from time to time, an "Indenture" and collectively, the
"Indentures"), more particularly described in a Terms Agreement, between the
Company and the trustee or trustees named therein (the "Trustee(s)"), in one or
more series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Securities being determined at the time of sale. The
Securities will be sold pursuant to a Terms Agreement, for resale in accordance
with terms of offering determined at the time of sale.
The firm or firms which agree to purchase the Securities are
hereinafter referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any, specified in a
Terms Agreement are hereinafter referred to as the "Representatives"; provided,
however, that if the Terms Agreement does not specify any representative of the
Underwriters, the term "Representatives," as used in this Agreement, shall mean
the Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants as of the date of this Agreement as follows:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Securities Act"),
and a registration statement on Form S-3 (File No. 333-10119) with
respect to the Securities has (i) been prepared by the Company in
conformity with the requirements of the Securities Act and the rules
and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and (ii) been filed
with the Commission under the Securities Act. Such registration
statement has become effective under the Securities Act. If any
post-effective amendment to such registration statement has been filed
with the Commission prior to the date of the applicable Terms
Agreement, the most recent such amendment has been declared effective
by the Commission. Copies of such registration statement and any
amendments thereto have been delivered by the Company to the
Representatives.
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 Commission; "Effective Date" means the date of the Effective
Time. As provided in Section 4(a), a prospectus supplement reflecting
the terms of the Securities, the terms of the offering thereof and the
other matters set forth therein has been prepared and will be filed
pursuant to Rule 424 under the Securities Act. 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 under
the Securities Act. 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
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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 Section 2(a), as amended at the time of the Terms Agreement,
including the exhibits thereto, the documents filed by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including any exhibits thereto, that are
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Securities Act (the "Incorporated Documents"), and including the
information, if any, deemed to be a part of the registration statement
pursuant to Rule 430A(b) under the Securities Act, 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.
The Commission has not issued any order suspending the
effectiveness of the Registration Statement, and no stop order has been
issued or threatened by the Commission.
(b) The Registration Statement conformed, on the
Effective Date or (with respect to Incorporated Documents) on the date
of filing thereof with the Commission, in all material respects to the
requirements of the Securities Act and the Rules and Regulations, and
the Registration Statement on the Effective Date did not contain and on
the Closing Date will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and on the
date of the applicable Terms Agreement, and at the time of filing of
the Prospectus pursuant to Rule 424(b), the Prospectus will conform in
all material respects to the requirements of the Securities Act and the
Rules and Regulations, and the Prospectus on such dates did not contain
and on the Closing Date will not contain 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 and the
Closing Date, respectively, the Indenture conformed and will conform in
all material respects with the requirements of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the applicable
rules and regulations thereunder; provided that no representation or
warranty is made as to (i) 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 through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein (which information shall be determined as set forth
in Section 7(b)) or (ii) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act.
(c) Price Waterhouse LLP, whose report is incorporated by
reference in the Prospectus, are independent certified public
accountants as required by the Securities Act. 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
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purported to be shown thereby at the dates and for the periods
indicated and have been prepared in accordance with generally accepted
accounting principles.
(d) 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 to so 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 those so identified in the
Terms Agreement, is a "significant subsidiary," as such term is defined
in Rule 405 of the Rules and Regulations.
(e) All of the issued shares of capital stock of each
significant subsidiary of the Company have been duly and validly
authorized and issued and are fully paid, non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(f) Each of this Agreement and the Terms 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.
(g) Except as described in or contemplated by the
Prospectus, there has not been any material adverse change in, or
adverse development which materially affects, the condition (financial
or other), results of operations, assets, business or prospects of the
Company and its subsidiaries taken as a whole, from the date as of
which information is given in the Prospectus.
(h) 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 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 or any
indenture, mortgage, deed of trust or other material agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them is bound, or to which any of their
properties is subject, where the effect of 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 Term Agreement, the Securities, the Indenture
and the Supplemental Indenture will not conflict with or constitute a
breach of, or default (with the passage of time 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
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or body having jurisdiction over the Company, any of its subsidiaries
or any of their respective properties. Except for the orders of the
Commission declaring the Registration Statement effective under the
Securities 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
Terms Agreement, the Securities, the Indenture and the Supplemental
Indenture.
(i) Subsequent to the respective dates as of which
information is given in the Registration Statement, any Preliminary
Prospectus and Prospectus and prior to the Closing Date, 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.
(j) 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.
(k) Except as described in the Prospectus, there is no
litigation or governmental proceeding to which the Company or any of
its subsidiaries is a party or to which any property of the Company or
any of its subsidiaries is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company or any of
its subsidiaries which might result in any material adverse change in
the condition (financial or other), results of operations, assets,
business or prospects of the Company and its subsidiaries taken as a
whole.
(l) 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.
(m) 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, 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.
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(n) Except as disclosed in the Prospectus, the Company
and its subsidiaries comply in all material respects with all
Environmental Laws (as defined below) (except to the extent that
failure to comply with such Environmental Laws could not have a
material adverse effect on the condition (financial or other), results
of operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole). Except as disclosed in the Prospectus,
neither the Company nor any of its subsidiaries is the subject of any
pending or threatened federal, state or local investigation evaluating
whether any remedial action by the Company or any of its subsidiaries
is needed to respond to a release of any Hazardous Materials (as
defined below) into the environment, resulting from the Company's or
any of its subsidiaries' business properties or assets or is in
contravention of any Environmental Law that could have a material
adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole. Except as disclosed in the Prospectus,
neither the Company nor any of its subsidiaries has received any notice
or claim, nor are there pending or threatened lawsuits against them,
with respect to violations of any Environmental Law or in connection
with any release of any Hazardous Material into the environment that,
in the aggregate, if the subject of any unfavorable decision, ruling or
finding, could have a material adverse effect on the condition
(financial or other), results of operations, assets, business or
prospects of the Company and its subsidiaries taken as a whole. As used
herein, "Environmental Laws" means any federal, state or local law,
regulation, permit, rule or order of any governmental authority,
administrative body or court applicable to the Company's or any of its
subsidiaries' business operations or the ownership or possession of any
of their properties or assets relating to environmental matters, and
"Hazardous Materials" means those substances that are regulated by or
form the basis of liability under any Environmental Laws.
(o) 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 in the securities registered pursuant to the Registration
Statement, or, except as described in the Prospectus or Schedule B to
the Terms Agreement, to require the Company to file any other
registration under the Securities 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
Securities Act.
(p) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not been
filed as exhibits to the Registration Statement.
(q) 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.
(r) The Company is not required to be registered, and is
not regulated, as an "investment company" as such term is defined under
the United States Investment Company Act of 1940, as amended and the
rules and regulations thereunder (collectively, the "Investment Company
Act").
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(s) 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 the Terms Agreement,
the Indenture and the Supplemental Indenture and delivered to and paid
for by the Underwriters as provided for in this Agreement, will have
been duly executed, authenticated (assuming due authentication by the
Trustee), issued and delivered and will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture and the Supplemental Indenture and enforceable against the
Company in accordance with their terms; and the Securities conform in
all material respects to the description thereof contained in the
Prospectus.
(t) The Company has all of the requisite corporate power
and authority to execute and deliver the Indenture and the Supplemental
Indenture and to perform its obligations provided for therein; the
Indenture has been duly authorized by the Company and has been duly
qualified under the Trust Indenture Act, will be substantially in the
form heretofore delivered to the Representatives 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 each of the Indenture and the Supplemental
Indenture conforms in all material respects to the description thereof
contained in the Prospectus.
3. Purchase and Offering of the Securities by the
Underwriters. The obligation of the Underwriters to purchase the Securities will
be evidenced by an exchange of a telegram, telex or other written communications
("Terms Agreement") at each time the Company determines to sell the Securities.
Each Terms Agreement will be in the form of Annex II attached hereto and will
incorporate by reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will be Underwriters,
the names of any Representatives, the amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and certain terms
of the Securities and whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined below). The Terms
Agreement will also specify the time and date of delivery and payment (such time
and date being herein and in the Terms Agreement referred to as the "Closing
Date"), the place of delivery and payment and any details of the terms of public
offering that should be reflected in the Prospectus Supplement relating to the
offering of the Securities. The obligations of the Underwriters to purchase the
Securities will be several and not joint. It is understood that the Underwriters
propose to offer the Securities for sale as set forth in the Prospectus.
Securities delivered to the Underwriters on the Closing Date will be in fully
registered form, in such denominations and registered in such names as the
Underwriters may request.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contract") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be made only with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the amount of Securities to be sold pursuant to Delayed Delivery
contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts.
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If the Company executes and delivers Delayed Delivery Contracts, the Contract
Securities will be deducted from the Securities to be purchased by the several
Underwriters and the aggregate amount of Securities to be purchased by each
Underwriter will be reduced pro rata in proportion to the amount of Securities
set forth opposite each Underwriter's name in such Terms Agreement, except to
the extent that the Representatives determine that such reduction shall be
otherwise than pro rata and so advise the Company. The Company will advise the
Representatives not later than the business day prior to the Closing Date of the
amount of Contract Securities.
4. Covenants of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus, including the Prospectus
Supplement, pursuant to Rule 424(b) within the time period prescribed
by the Rules and Regulations; to notify the Representatives, promptly
after it receives notice, 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 Prospectus (other than any
Incorporated Document or any amendment or supplement relating to an
offering of securities other than the Securities) and to furnish the
Representatives with copies thereof; to notify the Representatives,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to each of the Representatives
and to counsel for the Underwriters a copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all exhibits filed
therewith;
(c) To furnish promptly to each of the Representatives
copies of the Registration Statement, including all exhibits, any
Preliminary Prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as are reasonably requested;
(d) To file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to the
Prospectus that may be required by the Securities Act, in the
reasonable judgment of the Company or the Representatives, or requested
by the Commission;
(e) Prior to filing with the Commission any (i) amendment
to the Registration Statement or (ii) any Prospectus pursuant to Rule
424 of the Rules and Regulations (other than any Incorporated Document
or any amendment or supplement relating to an offering of securities
other than the Securities), to furnish a copy thereof to the
Representatives and counsel for the Underwriters;
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(f) As soon as practicable but no later than 16 months
after the date of each Terms Agreement, to make generally available to
its security holders an earning statement of the Company and its
subsidiaries conforming with the requirements of Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158)
covering a period of at least twelve months beginning on the first day
of the first fiscal quarter of the Company 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
Terms Agreement and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
Terms Agreement;
(g) During the period, if any, specified in the Terms
Agreement after the date of such Terms Agreement, to furnish to the
Representatives copies of all materials furnished by the Company to its
public securityholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the securities of the Company may be
listed pursuant to requirements of or agreements with such exchange or
to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder;
(h) Prompt from time to time, to take such action as the
Representatives reasonably may request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Securities; provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject;
(i) Until the date set forth in the Terms Agreement, 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 Securities 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 notes sold under the Company's shelf registration statement (file
no. 333-1195), originally filed with the Commission on February 26,
1996, and (B) any sale and leaseback financing with respect to rental
trucks, trailers and related equipment used by the Company in its
operations.
(j) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business with Cuba, and
the Company further agrees that if it commences engaging in
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business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement becomes or
has become effective with the Commission or with the Florida Department
of Banking and Finance (the "Department"), whichever date is later, or
if the information reported in the Prospectus, if any, concerning the
Company's business with Cuba or with any person or affiliate located in
Cuba changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a form
acceptable to the Department.
(k) The Company shall 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.
5. Expenses. Whether or not this Agreement becomes effective
or is terminated or the sale of the Securities to the Underwriters is
consummated, the Company shall pay or cause to be paid (A) all expenses
(including any associated taxes) incurred in connection with the authorization,
issuance, sale and delivery to the several Underwriters of the Securities, (B)
all fees and expenses (including, without limitation, fees and expenses of the
Company's accountants and counsel, but excluding fees and expenses of counsel
for the Underwriters except as set forth in clauses (C) and (D) below or as
otherwise agreed to by the Company) in connection with the preparation,
printing, filing, delivery and shipping of the Registration Statement (including
the financial statements therein and all amendments and exhibits thereto), any
Preliminary Prospectus, the Prospectus and any amendments or supplements thereto
and any documents incorporated by reference into any of the foregoing and the
printing, delivery and shipping of this Agreement and other underwriting
documents, including, but not limited to, Underwriters' Questionnaires,
Underwriters' Powers of Attorney, Blue Sky Memoranda, Agreements Among
Underwriters and Selected Dealer Agreements and any legal investment survey, (C)
all filing fees and fees and disbursements of counsel to the Underwriters
incurred in connection with the qualification of the Securities under state
securities laws as provided in Section 4(h) hereof, (D) the filing fee of the
National Association of Securities Dealers, Inc., if any, and fees and
disbursements of counsel to the Underwriters in connection with any application
to, and any review of the offering of the Securities conducted by, the National
Association of Securities Dealers, Inc., including the preparation of materials
therefor, (E) any applicable listing or other fees, (F) the cost and charges of
the Trustee and any transfer agent or registrar, (G) any fees payable to rating
agencies in connection with the rating of the Securities and (H) all other costs
and expenses incident to the performance of its obligations hereunder and under
any Delayed Delivery Contracts for which provision is not otherwise made in this
Section. It is understood, however, that, except as provided in this Section 5
and Section 10 hereof, each of the Underwriters shall pay all of its own costs
and expenses, including the fees of its counsel (except as set forth in clauses
(C) and (D) above or as otherwise agreed to by the Company) and any advertising
expenses incurred in connection with any offers it may make.
6. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and at the time of delivery of any Securities pursuant to a Terms Agreement, of
the representations and warranties of the Company contained in this Agreement,
to the performance by the Company of its obligations under this Agreement, and
to each of the following additional terms and conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 p.m. New York City time on the date
of determination
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of the public offering price, if such determination occurred at or
prior to 3:00 p.m. New York City time on such date or (ii) 12:00 noon
New York City time on the business day following the day on which the
public offering price was determined, if such determination occurred
after 3:00 p.m. New York City time on such date; if filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Prospectus, and any such supplement, shall have been filed
in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of 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) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Terms
Agreement, the Indenture, the Securities, the Registration Statement
and the Prospectus, and all other legal matters relating to this
Agreement and the Terms 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) The Company shall have furnished to the Representatives
the opinion of Snell & Wilmer L.L.P., counsel for the Company, dated
the Closing Date, 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 Subsidiaries (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; and, if the Securities are to be listed on any
securities exchange, authorization therefor has been given,
subject to official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required supporting
documents with respect to the Securities with such securities
exchange and such counsel has no reason to believe that the
Securities will not be authorized for listing, subject to
official notice of issuance and evidence of satisfactory
distribution;
(iii) each of the Indenture and the Supplemental Indenture
has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture
Act, and each constitutes a legal, valid and binding
instrument enforceable
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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 the Terms
Agreement, the Indenture and the Supplemental Indenture and
delivered to and paid for by the Underwriters pursuant to the
Terms Agreement and this Agreement, in the case of the
Underwriters' Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of any
Contract Securities, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture and the Supplemental Indenture, except that (x) the
enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally 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;
(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 Securities Act; any required filing of the Basic
Prospectus, any Preliminary Prospectus and the Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Prospectus (other than with respect to financial
statements and other financial and statistical information as
to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the Securities Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; and such
counsel has no reason to believe that at the Effective Date
the Registration Statement (other than with respect to
financial statements and other financial and statistical
information as to which such counsel need express no opinion)
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus (other than with respect to financial
statements and other financial and statistical information as
to which such counsel need express no opinion) at its date or
at the Closing Date included or includes any untrue statement
of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
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(vi) this Agreement, the Terms Agreement and any Delayed
Delivery Contracts have 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 or in the
Terms Agreement or any Delayed Delivery Contracts, except such
as have been obtained under the Securities Act and such as may
be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(viii) neither the execution and delivery of the Indenture
or the Supplemental Indenture or the issuance and sale of the
Securities nor the consummation of any other of the
transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof or of the Terms
Agreement or any Delayed Delivery Contracts, 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 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 and the Supplemental Indenture
conforms in all material respects to the descriptions thereof
contained in the Prospectus;
(x) an Arizona court would give effect to the choice
of New York law in the Indenture and the Supplemental
Indenture; and
(xi) the Company is not, and is not directly or indirectly
controlled by, or acting on behalf of any person or entity
which is, an "investment company" within the meaning of the
Investment Company Act.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of Arizona, the State of Nevada or the United States, to
the extent deemed proper and specified in such opinion, upon the
opinion of other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Underwriters, (B) as to matters
involving the application of the laws of the State of Nevada upon the
opinion delivered pursuant to Section 5(e) hereof and, (C) as to
matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials. Such counsel
may assume, for the purposes of such opinion and without investigation,
that the substantive laws of the State of New York do not materially
differ from the substantive laws of the State of Arizona, and such
counsel need express no opinion as to
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the laws of New York or their applicability to the matters covered by
such opinion. References to the Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(e) You shall have received on the Closing Date an opinion,
addressed to Snell & Wilmer L.L.P. and the Representatives, of Lionel,
Sawyer & Collins, counsel for the Company, dated the Closing Date, to
the effect that:
(i) each of the Company, Amerco Real Estate Company, a
Nevada corporation, U- Haul International, Inc., a Nevada
corporation, Ponderosa Holdings, Inc., a Nevada corporation,
and U-Haul Leasing and Sales Co., a Nevada corporation
(together, the "Nevada Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Nevada, with full
corporate power and authority to own its properties and
conduct its business as described in the Prospectus and to
carry out the transactions contemplated hereunder and in the
Prospectus;
(ii) each of the Indenture and the Supplemental Indenture
has been duly authorized, executed and delivered by the
Company and (assuming, in reliance upon the opinion delivered
pursuant to Section 5(g) hereof, that each of the Indenture
and the Supplemental Indenture is a legal, valid and binding
instrument enforceable against all parties thereto under the
laws of New York) constitutes a 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 the Terms Agreement, the Indenture and the
Supplemental Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of any
Contract Securities, will constitute legal, valid and binding
obligations of the Company (assuming, in reliance upon the
opinion delivered pursuant to Section 5(g) hereof, that each
of the Securities and Contract 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 or in any Delayed Delivery Contracts, except such as
have been obtained under the Securities Act and such as may be
required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the
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Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(iv) neither the execution and delivery of the Indenture
or the Supplemental Indenture or the issuance and sale of the
Securities nor the consummation of any other of the
transactions herein or therein contemplated nor the
fulfillment of the terms hereof or thereof or of the Term
Agreement or any Delayed Delivery Contracts 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
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 known to such
counsel and to which the Company or any of the Nevada
Subsidiaries 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 Subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of the Nevada
Subsidiaries; and
(v) A Nevada court would give effect to the choice of New
York law in the Indenture and the Supplemental Indenture.
As used therein, the phrase "known to counsel" shall
mean only such actual knowledge as such counsel has obtained from
consultation with attorneys presently 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 Company or the Nevada Subsidiaries.
Such counsel may further assume information as to
certain contacts between the jurisdictions of New York and the
transactions contemplated by the Securities, Contract Securities,
Indenture and 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, Contract Securities,
Indenture and 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
Representatives in connection with such transactions,
have their principal 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) many of the Representatives are
located in the State of New York.
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In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of Nevada or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other counsel
of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters, (B) as to matters involving the laws of
the State of Arizona, upon the opinion delivered pursuant to Section
5(d) hereof, (C) as to matters involving the laws of the State of New
York, upon the opinion delivered pursuant to Section 5(g) hereof and,
(D) as to matters of fact, to the extent deemed proper, on certificates
of responsible officers of the Company and public officials. References
to the Prospectus in this paragraph (c) include any supplements thereto
at the Closing Date.
(f) You shall have received on the Closing Date an opinion
(addressed to the Representatives) of Gary V. Klinefelter, Secretary
and General Counsel of the Company, dated the Closing Date 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 have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares
of capital stock of the subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and
clear of any perfected security interest or any other security
interests, claims, liens or encumbrances;
(iii) there is no pending or threatened action,
suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or
any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit, which is not described or filed
as required; and the statements included or incorporated in
the Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
(iv) neither the execution and delivery of the
Indenture or the Supplemental Indenture or the issuance and
sale of the Securities nor the consummation of any other of
the transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof or of any Delayed
Delivery Contracts, 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
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its subsidiaries is a party or bound or any judgment, order or
decree to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries; and
(v) to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose
have been instituted or threatened, and the Registration
Statement and the Prospectus (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Securities Act, the Exchange
Act and the Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe that at
the Effective Date the Registration Statement (other than the
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion) contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (other than the
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion) at its date or at the Closing Date
included or includes any untrue statement of a material fact
or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances
under which they were made, not misleading.
(g) The Representatives shall have received from Milbank,
Tweed, Hadley & McCloy, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale
of the Securities, the Indenture, the Supplemental Indenture, any
Delayed Delivery Contracts, 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.
(h) The Company shall have furnished to the Representatives a
certificate of the Company, signed by 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) the representations and warranties of the
Company in this Agreement are true and correct on and as of
the Closing Date with the same effect as if made on 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;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
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(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), results of operations,
assets, business or properties of the Company and its
subsidiaries, 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).
(i) At the Execution Time and on the Closing Date, the Company
shall furnish a letter addressed to the Representatives, in form and
substance satisfactory to the Representatives, from Price Waterhouse
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.
(j) Subsequent to the Execution Time or, if earlier, the 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 or
decrease specified in the letter or letters referred to in paragraph
(g) of this Section 5 or (ii) any change in or affecting the business
or properties of the Company and its subsidiaries the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the
judgement of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto).
(k) Prior to such time, none of the following shall have
occurred: (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the National Association of Securities
Dealers Automated Quotation National Market System or trading in the
Company's Series A 8 1/2% Preferred Stock shall have been suspended by
the Commission or the New York Stock Exchange, or trading in securities
generally on the New York Stock Exchange or the National Association of
Securities Dealers Automated Quotation National Market System shall
have been suspended or limited or minimum prices shall have been
established on either such Exchange or Market System, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crises the effect of
which on financial markets is such as to make it, in the judgment of
the Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Prospectus (exclusive of any supplement thereto).
(l) Subsequent to the Execution Time, 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 Securities Act) 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.
(m) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
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All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution
(a) The Company shall indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Securities), to
which that Underwriter or controlling person may become subject, under
th Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading any act or failure to act or any alleged act or failure to
act by any Underwriter in connection with, or relating in any manner
to, the Securities or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided that the Company shall not be liable
under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter
through its gross negligence or willful misconduct), and shall
reimburse each Underwriter, the directors, officers, employees and
agents of each Underwriter and each such controlling person for any
legal or other expenses reasonably incurred by that Underwriter or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; 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 or the Prospectus or in any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of
any Underwriter specifically for inclusion therein (which information
shall be determined as set forth in Section 7(b)); 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 agents 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 Securities
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 the
Prospectus, unless such failure resulted from non-compliance by the
Company with Section 4(c). 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
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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) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors
(including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company),
each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of
that Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred. The Company acknowledges that the statements set
forth in the last paragraph of the cover page and under the heading
"Underwriting" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in the documents
referred to in the foregoing indemnity, and the Representatives confirm
that such statements are correct. 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) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, if
a claim in respect thereof is to be made against the indemnifying party
under this Section 7, the indemnified party shall notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7. If any such
claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the Representatives shall have the right to employ
counsel to represent jointly the Representatives and those other
Underwriters and their respective controlling persons who may
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be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company under
this Section 7, if, in the reasonable judgment of the Representatives,
if there are legal defenses available to them which are different from
or in addition to those available to such indemnifying party (it being
understood that the Company shall not, in connection with any one such
claim or action or separate but substantially similar or related claims
or actions in the same jurisdiction arising out of the same allegations
or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (other than local counsel
which shall be engaged for purposes of appearing with such counsel in
such jurisdictions in which such firm of attorneys is not licensed to
practice)), and in that event the fees and expenses of such separate
counsel shall be paid by the Company. Anything in this Section 7(c) to
the contrary notwithstanding, an indemnifying party shall not be liable
for any settlement of any claim or action effected without its written
consent.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 7(a) or 7(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred
to therein (other than by reason of the failure to give notice, as
provided in the first sentence of Section 7(c)), then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute
to the amount paid or payable by such indemnified party as a result of
such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other
with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well
as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the
other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Securities
purchased under this Agreement, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
Section 7(d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the
equitable considerations referred to in this Section 7(d). The amount
paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in
this Section 7(d) shall be deemed to include, for purposes of this
Section 7(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
7(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public was offered to the
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public exceeds the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute as provided in this
Section 7(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The Underwriters severally confirm that the statements
with respect to the public offering of the Securities set forth on the
cover page of, and under the caption "Underwriting" in, the Prospectus
are correct and constitute the only information furnished in writing to
the Company by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and the Prospectus.
(f) The agreements contained in Sections 4(f), 4(g), 5 and
this Section 7 and the representations and warranties of the Company in
Section 2 (as made as of the date of this Agreement) shall survive the
delivery of the Securities and shall remain in full force and effect,
regardless of any termination or cancellation of the Terms Agreement
incorporating the terms of this Agreement or any investigation made by
or on behalf of any indemnified party.
8. Defaulting Underwriters. If any Underwriter defaults in the
performance of its obligations under a Terms Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Securities which
the defaulting Underwriter agreed but failed to purchase in the respective
proportions which the number of shares or principal amount of Securities set
opposite the name of each remaining non-defaulting Underwriter in Schedule A to
the Terms Agreement bears to the total number of shares or principal amount of
the Securities set opposite the names of all the remaining non-defaulting
Underwriters in Schedule A to the Terms Agreement; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any
Securities on the Closing Date if the aggregate number of shares or principal
amount of the Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds 9.09% of the total number of shares
or principal amount of the Securities, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the number of
shares or principal amount of Securities set forth opposite its name on Schedule
A to the Terms Agreement. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the
Securities. If the remaining Underwriters or other underwriters satisfactory to
the Representatives do not elect to purchase the number of shares or principal
amount which the defaulting Underwriter or Underwriters agreed but failed to
purchase, the Terms Agreement shall terminate without liability on the part of
any 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 5 and 10.
Nothing contained herein shall relive a defaulting Underwriter
of any liability it may have to the Company for damages caused by its default.
If other underwriters are obligated or agree to purchase the Securities of a
defaulting or withdrawing Underwriter, either the Representatives or the Company
may postpone the Closing Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement, the Prospectus
or any supplement thereto or in any other document or arrangement.
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22
9. Effective Date and Termination. The obligations of the
Underwriters under the Terms Agreement may be terminated by the Representatives
by notice given to and received by the Company prior to delivery of any payment
for the Securities if, prior to that time, the events described in any of
Section 6(k), 6(j) or 6(l) shall have occurred.
10. Reimbursement of Underwriters' Expenses. If (a) the
Company shall fail to tender the Securities for delivery to the Underwriters for
any reason permitted under this Agreement or the Terms Agreement or (b) the
Underwriters shall decline to purchase the Securities for any reason permitted
under this Agreement or the Terms Agreement (including the termination of the
Terms Agreement pursuant to Section 9), the Company shall reimburse the
Underwriters for the reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been reasonably incurred by them in
connection with the Terms Agreement and the proposed purchase of the Securities,
and upon demand the Company shall pay the full amount thereof to the
Representatives. If the Terms Agreement is terminated pursuant to Section 8 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any Underwriter on account of those expenses.
11. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing and shall be deemed duly given if
mailed or terminated by any standard form of telecommunication. Such notices
shall be directed as follows:
(a) if to the Underwriters, to their addresses furnished to
the Company in writing for the purpose of communications hereunder;
(b) if to the Company, to the address of the Company set forth
in the Registration Statement, Attention: General Counsel;
provided, however, that any notice to an Underwriter pursuant to Section 7(c)
shall be given to such Underwriter at its address set forth in its acceptance
telex to the Representatives, which address will be supplied to any other party
hereto by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
12. Persons Entitled to Benefit of Agreement. The Terms
Agreement (including the provisions of this Agreement) shall inure to the
benefit of and be binding upon the Underwriters and the Company and their
respective successors. The Terms Agreement (including the provisions of this
Agreement) are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement also shall be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 7(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 12, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provisions contained in this Agreement. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
solely by reason of such purchase.
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13. Certain Definitions. For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange is open for
trading, and "subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York (without giving effect to the
principles of choice of law).
15. Counterparts. The Terms Agreement may be executed in
counterparts and each such counterpart shall be deemed to be an original but all
such counterparts shall together constitute one and the same instrument.
16. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
24
ANNEX I
[Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on _______________, 19__*.]
DELAYED DELIVERY CONTRACT
[Insert date of initial
public offering]
AMERCO
c/o [Name of Underwriter[s]]
[Address]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from AMERCO, a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on _______________, 19__ ("Delivery Date"),]
[$]_____________________________
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated _______________, 19__ and a Prospectus
Supplement dated ______, 19__, relating thereto, receipt of copies of which is
hereby acknowledged, at ___% of the principal amount thereof plus accrued
interest from _______________, 19__, if any, and on the further terms and
conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
Delivery Date Principal Amount
_________________ [$]_________________
_________________ [$]_________________
Each of such delivery dates is hereinafter referred to as a "Delivery Date".]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on [the] [each] Delivery Date shall be made to the Company
or its order by certified or official bank check in [New York Clearing House
(next day)] funds at the office of _______________ at 10:00 a.m. on the Delivery
Date upon delivery to the undersigned of the Securities to be purchased by the
undersigned for delivery on such Delivery Date in definitive fully registered
form and in such denominations and
______________
* Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
I-1
25
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to such Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on [the] [each] Delivery Date
shall be subject only to the conditions that (i) investment in the Securities
shall not at such Delivery Date be prohibited under the laws of any jurisdiction
in the United States to which the undersigned is subject and (2) the Company
shall have sold to the Underwriters the total principal amount of the Securities
less the principal amount thereof covered by this and other similar Contracts.
The undersigned represents that its investment in the Securities is not, as of
the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below,
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is undersigned that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a "first-come, first-served" basis. If this Contract is acceptable to the
Company, it is requested that the Company sign in the form of acceptance below
and mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the Company
and the undersigned when such counterpart is so mailed or delivered.
Yours very truly,
____________________________
(Name of Purchaser)
By__________________________
(Title of Signatory)
____________________________
____________________________
(Address of Purchaser)
Accepted as of the above date:
AMERCO
By________________________
Name:
Title:
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26
ANNEX II
AMERCO
(the "Company")
Debt Securities
TERMS AGREEMENT
, 19__
AMERCO
1325 Automotive Way, Suite 100
Reno, Nevada 89502-3239
Attention: Chief Financial Officer
Ladies and Gentlemen:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we] [We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement Basic
Provisions of the Company attached hereto (the "Underwriting Agreement"), the
following securities ("Securities") to be issued under an indenture, dated
______ ___, 19__, between the Company and _______________, as Trustee, on the
following terms:
Title: [ %] [Floating Rate] [Senior] Notes Due _____
Principal Amount: [$]_________
Interest: [ % per annum, from ______ ___, 19__, payable semiannually on
______ ___ and ______ ___, commencing _______ ___, 19__, to holders of record on
the preceding ______ ___ or ______ ___, as the case may be.] [Zero coupon.]
Maturity: ______ ___, _____.
Optional Redemption:
Sinking Fund:
Period Designated Pursuant to Section 4(g) of the Underwriting
Agreement: _____ years.
Period Designated Pursuant to Section 4(i) of the Underwriting
Agreement: _____ days.
[Conversion Provisions]:
[Add any other terms.]
Delayed Delivery Contracts: [None] [Delivery Date][s] shall be ______
___, 19__. Underwriters' fee is ___% of the principal amount of the Contract
Securities.]
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Purchase Price: ___% of principal amount, plus accrued interest [, if
any,] from ______ ___, 19__.
Expected Reoffering Price: ___% of principal amount, subject to change
by the undersigned.
Closing Date: ______ a.m. on ______ ___, 19__, at __________, in New
York Federal (same-day) funds.
[Name and Address[es] of Representative[s]:]
The respective principal amounts of the Securities to be purchased by each of
the Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your
consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The significant subsidiaries (as defined in Rule 405 under the
Securities Act of 1933) of the Company are as follows: ___________________.
The provisions of the Underwriting Agreement are incorporated herein by
reference [If appropriate, insert--, except that the obligations and agreements
set forth in Section 8 ("Defaulting Underwriters") of the Underwriting Agreement
shall not apply to the obligations of the Underwriters to purchase the above
Securities].
The Securities will be made available for checking and packaging at the
office of _______________ at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
[Please signify your acceptance of the foregoing by return wire not
later than _____ p.m. today.]
Very truly yours,
[Insert name(s) of Representatives or Underwriters]
[, on behalf of [themselves] [itself] and as
Representative[s] of the Several] [As] Underwriter[s]
[By [Name of Representative]]
By____________________________
Name:
Title:
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28
SCHEDULE A
Principal
Underwriter Amount
- ----------- ---------
---------
Total.......................................[$]
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SCHEDULE B
II-4
30
SCHEDULE C
To: [Insert name(s) of Representatives or Underwriters],
As [Representative[s] of the Several] Underwriter[s]
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated ______
___, 19__, relating to [$]_______ principal amount of our [insert title of
Securities] (the "Terms Agreement"). We also confirm that, to the best of our
knowledge after reasonable investigation, the representations and warranties of
the undersigned contained in Section 2 of the Underwriting Agreement -- Basic
Provisions of the Company referred to in the Terms Agreement (together with the
Terms Agreement, the "Underwriting Agreement"), are true and correct, no stop
order suspending the effectiveness of the Registration Statement (as defined in
the Underwriting Agreement) or of any part thereof has been issued and no
proceedings for that purpose have been instituted or, to the knowledge of the
undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been (or in
the case of a form of prospectus filed pursuant to Rule 424(b)(2) or (5) there
will be, as of the date of such prospectus) no material adverse change in the
financial position or results of operations of the undersigned and its
subsidiaries except as set forth in or contemplated by the Prospectus.
Very truly yours,
AMERCO
By____________________________
Name:
Title:
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