<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 25, 1996
---------------------
Commission Registrant, State of Incorporation, IRS Employer
File Number Address, and Telephone Number Identification No.
- ----------- ----------------------------------- ------------------
0-7862 AMERCO 88-0106815
(A Nevada Corporation)
1325 Airmotive Way, Ste. 100
Reno, Nevada 89502-3239
Telephone (702) 688-6300
2-38498 U-Haul International, Inc. 86-0663060
(A Nevada Corporation)
2727 N. Central Avenue
Phoenix, Arizona 85004
Telephone (602) 263-6645
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
1.1 Debt Securities Underwriting
Agreement
4.1 First Supplemental Indenture,
Dated as of May 6, 1996
4.2 Form of the Notes (included in
Exhibit 4.1)
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMERCO
-------------------------------
(Registrant)
DATE: May 6, 1996 /s/ GARY V. KLINEFELTER
-------------------------------
Gary V. Klinefelter, Secretary
(Signature)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
U-Haul International, Inc.
-------------------------------
(Registrant)
DATE: May 6, 1996 /s/ GARY V. KLINEFELTER
-------------------------------
Gary V. Klinefelter, Secretary
(Signature)
<PAGE> 1
EXHIBIT 1.1
AMERCO
Debt Securities
Underwriting Agreement
New York, New York
May 1, 1996
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
AMERCO, a Nevada corporation (the "Company"), the direct or
indirect parent company of, among others, Amerco Real Estate Company, a Nevada
corporation, U-Haul International, Inc., a Nevada corporation, Ponderosa
Holdings, Inc., a Nevada corporation, Oxford Life Insurance Company, an Arizona
corporation, Republic Western Insurance Company, an Arizona corporation, and
U-Haul Leasing and Sales Co., a Nevada corporation, proposes to sell to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the principal amount of its
securities identified in Schedule I hereto (the "Securities"), to be issued
under an indenture (the "Indenture") dated as of May 1, 1996 between the Company
and Citibank, N.A., as trustee (the "Trustee"), as supplemented by a
Supplemental Indenture, to be dated as of the Closing Date (as hereinafter
defined), between the Company and the Trustee (the "Supplemental Indenture"). If
the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) If the offering of the Securities is a Delayed Offering
(as specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933, as amended (the
"Act") and has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (the
file number of which is set forth in Schedule I hereto) on
such Form, including a basic prospectus, for registration
under the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which has
previously been furnished to you. Such registration statement,
as so amended, has become effective. The offering of the
Securities is a Delayed Offering and, although the Basic
Prospectus may not include all the information with respect to
the Securities and the offering thereof required by the Act
and the rules thereunder to be included in the Final
Prospectus, the Basic Prospectus includes all such information
required by the Act and the rules thereunder to be included
therein as of the Effective Date. The Company will next file
with the Commission pursuant to Rules 415 and 424(b)(2) or (5)
a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the
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offering thereof. As filed, such final prospectus supplement
shall include all required information with respect to the
Securities and the offering thereof and, except to the extent
the Representatives shall agree to a modification, shall be in
all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Company meets the requirements for the use
of Form S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth
in Schedule I hereto) on such Form, including a basic
prospectus, for registration under the Act of the offering and
sale of the Securities. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus,
each of which has previously been furnished to you. The
Company will next file with the Commission either (x) a final
prospectus supplement relating to the Securities in accordance
with Rules 430A and 424(b)(1) or (4), or (y) prior to the
effectiveness of such registration statement, an amendment to
such registration statement, including the form of final
prospectus supplement. In the case of clause (x), the Company
has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to
be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with
respect to the Securities and the offering thereof and, except
to the extent the Representatives shall agree to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") and the Trust Indenture Act
of 1939 (the "Trust Indenture Act") and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective
Date and on the Closing Date, the Indenture and the Supplemental
Indenture did or will comply in all material respects with the
requirements of the Trust Indenture Act and the rules thereunder; and,
on the Effective Date, the Final Prospectus, if not to be filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any
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; provided,
however, that the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of any trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement
thereto) (which information shall be determined as set forth in Section
7(b) hereof).
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(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each
date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of
a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to
the Basic Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration Statement"
shall mean the registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall
also mean such registration statement as so amended. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule
430A" and "Regulation S-K" refer to such rules or regulation under the
Act. "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, deemed to
be incorporated therein by reference. A "Non-Delayed Offering" shall
mean an offering of securities which is intended to commence promptly
after the effective date of a registration statement, with the result
that, pursuant to Rules 415 and 430A, all information (other than Rule
430A Information) with respect to the securities so offered must be
included in such registration statement at the effective date thereof.
A "Delayed Offering" shall mean an offering of securities pursuant to
Rule 415 which does not commence promptly after the effective date of a
registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement at
the effective date thereof with respect to the securities so offered.
Whether the offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
(d) Price Waterhouse LLP, whose report is incorporated by
reference in the Final Prospectus, are independent certified public
accountants as required by the Act. The financial statements and
schedules (including the related notes and supporting schedules)
included or incorporated by reference in the Registration Statement and
the Final Prospectus present fairly the financial condition, results of
operations and changes in financial condition of the entities purported
to be shown thereby at the dates and for the periods indicated and have
been prepared in accordance with generally accepted accounting
principles.
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(e) 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 Final 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.
(f) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company and is enforceable against the Company in
accordance with its terms.
(g) Except as described in or contemplated by the Final
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 Final 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 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 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 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 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 Final
Prospectus and Final 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
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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 Final
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 Final 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.
(n) Except as disclosed in the Final 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 Final
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 Final
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.
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(o) 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 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 Final Prospectus.
(p) 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 Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto, the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto, except that, if Schedule
I hereto provides for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to be purchased by
the Underwriters hereunder shall be as set forth in Schedule II hereto less the
respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities", and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities".
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts"), substantially in the
form of Schedule III hereto (if such schedule is so provided) but with such
changes therein as the Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation therefor, the Company
will pay to the Representatives, for the account of the Underwriters, on the
Closing Date, the percentage set forth in Schedule I hereto of the principal
amount of the Securities for which Delayed Delivery Contracts are made. Delayed
Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not less
than the minimum principal amount set forth in Schedule I hereto, and the
aggregate principal amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The Underwriters will
not have any responsibility in respect of the validity or performance of Delayed
Delivery Contracts. The principal amount of Securities to be purchased by each
Underwriter hereunder shall be the amount set forth in Schedule II hereto,
reduced by an amount which shall bear the same proportion to the total principal
amount of Contract Securities as the principal amount of Securities set forth
opposite the name of such Underwriter bears to the aggregate principal amount
set forth in Schedule II hereto, except to the extent that you determine that
such reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount of
Securities to be purchased by all Underwriters hereunder shall be the aggregate
principal amount set forth in Schedule II hereto less the aggregate principal
amount of Contract Securities.
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3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company in same day funds, in which case the Company will
reimburse you for your cost of obtaining such funds. Delivery of the
Underwriters' Securities shall be made at such location as the Representatives
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Securities shall be made at the office specified in
Schedule I hereto. Certificates for the Underwriters' Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than three full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the representatives in New
York, New York, not later than 1:00 PM on the business day prior to the Closing
Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives (i)
when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii) when
the Final Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv)
of any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or notification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance and (ii) supply
any supplemented prospectus to you in such quantities as you may
reasonably request.
<PAGE> 8
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(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will pay the fee of the National Association of Securities Dealers,
Inc. in connection with any review of the offering.
(f) Until the date set forth on Schedule I hereto, 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 Act, or
(ii) without notifying the Representatives,
offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any debt
securities issued or guaranteed by the Company (other than the
securities described in the preceding clause (i));
provided, however, that the foregoing covenant shall not apply to (A)
any medium-term note program of the Company and (B) any sale and
leaseback financing with respect to rental trucks, trailers and related
equipment used by the Company in its operations.
(g) 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 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.
(h) 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 of 1940, as amended, and the rules and
regulations thereunder (collectively, the Investment Company Act).
(i) 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,
<PAGE> 9
9
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 Final Prospectus, the Final
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(e)
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 4(i)
and Section 6 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.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional 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 PM New York City time on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM 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 PM New York City time on such date; if filing of
the Final Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Final 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) 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 Final 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;
<PAGE> 10
10
(ii) the Company's authorized, issued and outstanding
capital stock is as set forth in the Final Prospectus; the
Securities conform to the description thereof contained in the
Final 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 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 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 entitled to the
benefits of the Indenture and the Supplemental Indenture,
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;
(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
Final Prospectus, or to be filed as an exhibit, which is not
described or filed as required; and the statements included or
incorporated in the Final 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 Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final 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 Final 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 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 Final 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
<PAGE> 11
11
statements therein, in the light of the circumstances under
which they were made, not misleading;
(vi) this 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
any Delayed Delivery Contracts, except such as have been
obtained under the 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 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 Final 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(c) hereof and, (C) as
to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials. Such counsel
may assume, for the purposes of such opinion and without investigation,
that the substantive laws of the State of New York do not materially
differ from the substantive laws of the State of Arizona, and such
counsel need express no opinion as to the laws of New York or their
applicability to the matters covered by such opinion. References to the
Final Prospectus in this paragraph (b) include any supplements thereto
at the Closing Date.
<PAGE> 12
12
(c) 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 Final Prospectus and
to carry out the transactions contemplated hereunder and in
the Final 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(e) 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
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(e)
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 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;
(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 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,
<PAGE> 13
13
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.
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(b) hereof, (C) as to matters involving the laws
of the State of New York, upon the opinion delivered pursuant to
Section 5(e) 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 Final Prospectus in this
paragraph (c) include any supplements thereto at the Closing Date.
(d) 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 Final 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;
<PAGE> 14
14
(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 Final 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 Final Prospectus, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not
described or filed as required; and the statements included or
incorporated in the Final 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 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 Final 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 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 Final 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.
(e) 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 Final
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.
<PAGE> 15
15
(f) 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
Final Prospectus, any supplement to the Final 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
(iii) since the date of the most recent financial
statements included in the Final 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 Final Prospectus (exclusive of any
supplement thereto).
(g) 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 Final
Prospectus.
(h) 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 Final 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 Final Prospectus
(exclusive of any supplement thereto).
(i) 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 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.
(j) 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.
(k) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned
<PAGE> 16
16
above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the office of Milbank, Tweed, Hadley & McCloy at 1 Chase
Manhattan Plaza, New York, New York 10005, on the Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities, including in
connection with any investigation or preparation made by them in respect of the
marketing of the Securities or in contemplation of the performance by them of
their obligations hereunder.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) (i) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, (ii) arise out of or are based upon 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, or
(iii) arise out of or are based upon 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
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein (which information shall be determined as set
forth in Section 7(b) hereof). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement and each person who controls the Company within the
meaning of either the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to
<PAGE> 17
17
such Underwriter furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. 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 you, as the Representatives, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; (i) but the failure so to notify the indemnifying party
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relive the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively, "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be
<PAGE> 18
18
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or the Underwriters. The Company
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to such
time (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
Final Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the
<PAGE> 19
19
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at AMERCO, 1325 Airmotive Way, Suite 100, Reno,
Nevada 89502-3239, Attention: Gary Horton, facsimile number (702) 688-6338, with
a copy to Snell & Wilmer L.L.P., One Arizona Center, Phoenix, Arizona
85004-0001, Attention: Jon S. Cohen, facsimile number (602) 382-6070.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
14. Counterparts. This Agreement may be executed by one or
more of the parties hereto in any number of counterparties, each of which shall
be deemed to be an original, and all such respective counterparts shall together
constitute one and the same instrument.
<PAGE> 20
20
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
AMERCO
By:____________________________
Title:
The forgoing Agreement is
hereby confirmed and accepted
as of the date specified
in Schedule I hereto.
Salomon Brothers Inc
Lehman Brothers Inc.
Citicorp Securities, Inc.
By: Salomon Brothers Inc
By:______________________
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE> 21
SCHEDULE I
Underwriting Agreement dated May 1, 1996
Registration Statement No.: 333-1195
Representatives: Salomon Brothers Inc
Lehman Brothers Inc.
Citicorp Securities, Inc.
Title, Purchase Price and Description of Securities:
Title: 7.85% Senior Notes Due 2003
Principal amount: $175,000,000
Purchase price (include accrued
interest or amortization, if
any): 99.345%
Sinking fund provisions: None
Redemption provisions: None
Other provisions: The Securities are subject to repurchase at the
option of the holders thereof in the event of a
change of control of the Company, as set forth in
greater detail in the Supplemental Indenture.
Closing Date, Time and Location: May 6, 1996 at 10:00 A.M.
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, NY 10005
Type of Offering: Delayed Offering
Date referred to in Section 4(f) after which the Company may
offer or sell certain debt securities issued or guaranteed
by the Company without the consent of the Representative(s):
November 1, 1996
<PAGE> 22
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount
of Securities to
Underwriters be Purchased
------------ ------------
<S> <C>
Salomon Brothers Inc ....................................... $ 87,500,000
Lehman Brothers Inc. ....................................... 58,333,000
Citicorp Securities, Inc. .................................. 29,167,000
------------
Total ................................... $175,000,000
============
</TABLE>
<PAGE> 1
EXHIBIT 4.1
- --------------------------------------------------------------------------------
AMERCO
TO
CITIBANK, N.A., TRUSTEE
----------------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF MAY 6, 1996
TO
INDENTURE
DATED AS OF MAY 1, 1996
----------------
7.85% SENIOR NOTES DUE 2003
- --------------------------------------------------------------------------------
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of the 6th day of May,
1996 (this "Supplemental Indenture"), between AMERCO, a corporation duly
organized and existing under the laws of the State of Nevada (herein called the
"Company"), having its principal office at 1325 Airmotive Way, Suite 100, Reno,
Nevada 89502-3239, and Citibank, N.A., a national banking association, existing
under the laws of the United States of America, as Trustee (herein called the
"Trustee") under the Indenture dated as of May 1st, 1996 between the Company and
the Trustee (the "Debt Securities Indenture").
RECITALS OF THE COMPANY
The Company has executed and delivered the Debt Securities
Indenture to the Trustee to provide for the issuance of its unsecured
debentures, notes or other evidences of indebtedness, to be issued from time to
time in one or more series as determined by the Company in accordance with the
terms of the Debt Securities Indenture, in an unlimited aggregate principal
amount which may be authenticated and delivered thereunder as provided in the
Debt Securities Indenture.
Pursuant to the terms of the Debt Securities Indenture, the
Company desires to provide for the establishment of a new series of notes to be
known as its 7.85% Senior Notes Due 2003 (said series being hereinafter referred
to as the "Notes"), the form and substance of such Notes and the terms,
provisions and conditions thereof to be set forth as provided in the Debt
Securities Indenture and this Supplemental Indenture.
All things necessary to make this Supplemental Indenture a
valid agreement of the Company, in accordance with its terms, have been done.
NOW THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof (as defined below), it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the Notes
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF SPECIAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) terms used herein and not otherwise defined
herein shall have the respective meanings assigned thereto in the Debt
Securities Indenture, whether by cross-reference or otherwise;
(2) the words "herein", "hereof" and "hereunder" and
other words of similar import, when used in this Supplemental
Indenture, refer to this Supplemental Indenture as a whole and not to
any particular Article, Section or other subdivision thereof; and
(3) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as
well as the singular, as follows:
"Attributable Debt" means indebtedness for money borrowed
deemed to be incurred in respect of a Sale and Leaseback Transaction and shall
be, at the date of determination, the present value (discounted at the actual
rate of interest implicit in such transaction, compounded annually), of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale and Leaseback Transaction.
"Capitalized Lease" means any lease the obligation for Rentals
with respect to which is required to be capitalized on a consolidated balance
sheet of the lessee and its subsidiaries in accordance with GAAP.
<PAGE> 3
"Capital Stock" means, with respect to any Person, any and all
shares or other equivalents (however designated) of corporate stock, partnership
interests, or any other participation, right, warrant, option or other interest
in the nature of an equity interest in such Person, but excluding debt
securities convertible or exchangeable into such equity interest.
"Change of Control" means the occurrence of any of the
following events: (i) any "person" or "group" (within the meaning of Sections
13(d) and 14(d) of the Exchange Act or any successor provision to either of the
foregoing, including any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act; provided, however, that a group formed solely for the purpose of
voting securities shall not be deemed to be a group for purpose of this
definition), other than the Company, any employee benefit plan of the Company or
any Subsidiary, or Permitted Persons, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 35% or
more of the total voting power of the fully diluted Voting Stock of the Company,
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by the Board of Directors of the
Company or whose nomination for election by the shareholders of the Company was
approved by a vote of 66-2/3% of the directors of the Company then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the Company then in
office, (iii) the Company consolidates or merges with or into any other Person
or any other Person consolidates or merges with or into the Company, in either
case, other than a consolidation or merger (a) with a Wholly Owned Consolidated
Subsidiary in which all of the Voting Stock of the Company outstanding
immediately prior to the effectiveness thereof is changed into or exchanged for
substantially the same consideration or (b) (1) pursuant to a transaction in
which the outstanding Voting Stock of the Company is changed into or exchanged
for cash, securities or other Property with the effect that the "beneficial
owners" of the outstanding Voting Stock of the Company, immediately prior to
such transaction, beneficially own, directly or indirectly, more than 50% of the
total voting power of the fully diluted Voting Stock of the surviving
corporation immediately following such transaction and (2) no "person" or
"group", other than the Company, any employee benefit plan of the Company or any
Subsidiary, or Permitted Persons, beneficially owns, directly or indirectly, 35%
or more of the total voting power of the fully diluted Voting Stock of the
surviving corporation immediately following such transaction, or (iv) the
Company sells, conveys, transfers or leases, directly or indirectly, all or
substantially all of its assets to any Person other than a Wholly Owned
Consolidated Subsidiary.
"Change of Control Offer" has the meaning specified in Section
701 hereof.
"Change of Control Payment Date" has the meaning specified in
Section 701 hereof.
"Change of Control Purchase Price" has the meaning specified
in Section 701 hereof.
"Change of Control Triggering Event" means the occurrence of
both a Change of Control and a Rating Decline with respect to the Notes.
"Consolidated Net Tangible Assets" means, as of the date of
any determination thereof, the total amount of all assets of the Company and its
Consolidated Subsidiaries (less depreciation, depletion and other properly
deductible valuation reserves) after deducting Intangibles.
"Consolidated Subsidiary" means any Subsidiary of the Company
or of any Consolidated Subsidiary which is consolidated with the Company for
financial reporting purposes in accordance with GAAP.
"Debt" of the Company or any Subsidiary thereof means,
collectively, (i) any bond, debenture, note or other evidence of indebtedness
for money borrowed by the Company or any Subsidiary (excluding any indebtedness
for money borrowed by the Company from any Affiliate thereof) or (ii) any
mortgage, indenture or instrument (including the Debt Securities Indenture)
under which there may be issued or by which there may be secured or evidenced
any indebtedness for money borrowed by the Company (excluding any indebtedness
for
2
<PAGE> 4
money borrowed by the Company from any Affiliate thereof) or any Subsidiary
(excluding any indebtedness for money borrowed by any Subsidiary from any
Affiliate thereof), whether such indebtedness now exists or shall hereafter be
created.
"Default" means an event which, with the giving of notice or
the lapse of time, or both, would constitute an Event of Default.
"Dollars" means the lawful currency of the United States of
America.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means United States generally accepted accounting
principles as in effect as of the date of determination, unless otherwise
stated.
"Good Faith Contest" means, with respect to any tax,
assessment, Lien, obligation, claim, liability, judgment, injunction, award,
decree, order, law, regulation, statute or similar item, any challenge or
contest thereof by appropriate proceedings timely initiated in good faith by the
Person subject thereto for which adequate reserves therefor have been taken in
accordance with GAAP.
"indebtedness for money borrowed", when used with respect to
the Company or any Subsidiary, means any obligation of, or any obligation
guaranteed by, the Company or any Subsidiary for the repayment of borrowed
money, whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation of, or any such obligation guaranteed
by, the Company for the payment of the purchase price of Property or assets.
"Intellectual Properties" means all material patents, patent
applications, copyrights, copyright applications, trade secrets, trade names and
trademarks, technologies, methods, processes or other proprietary properties or
information which are used by the Company and its Consolidated Subsidiaries in
the conduct of their business and are either owned by them or are used, employed
or practiced by them under valid and existing licenses, grants, "shop rights" or
other rights.
"Intangibles" means all Intellectual Properties and all
goodwill, patents, trade names, trademarks, copyrights, franchises, experimental
expense, organization expense, unamortized debt discount and expense, deferred
assets (other than prepaid insurance, prepaid taxes, prepaid advertising,
prepaid licensing and other similar expenses prepaid in the ordinary course of
business), amounts invested in or advanced to or equity in the Company's
Subsidiaries other than Consolidated Subsidiaries less any writedowns thereof,
the excess of cost of shares acquired over book value of related assets, any
increase in the value of a fixed asset arising from a reappraisal, revaluation
or write-up thereof, and such other assets as are properly classified as
"intangible assets" in accordance with GAAP.
"Investment Grade Rating" means a rating equal to or higher
than Baa3 (or the equivalent) by Moody's Investors Service, Inc. (or any
successor to the rating agency business thereof), BBB- (or the equivalent) by
Standard & Poor's Rating Group (or any successor to the rating agency business
thereof) and BBB- (or the equivalent) by Duff & Phelps Credit Rating Co. (or any
successor to the rating agency business thereof).
"Issue Date" means the date of initial issuance of the Notes
under this Supplemental Indenture and the Debt Securities Indenture.
"Lien" means any interest in Property securing an obligation
owed to, or a claim by , a Person other than the owner of the Property, whether
such interest is based on the common law, statute or contract, and including but
not limited to the security interest or lien arising from a mortgage,
encumbrance, pledge, conditional sale or trust receipt or a lease, consignment
or bailment for security purposes. The term "Lien" shall include reservations,
exceptions, encroachments, easements, rights-of-way, covenants, conditions,
restrictions, bankers' liens, setoffs and similar arrangements, leases and other
title exceptions and encumbrances (including, with respect to stock, stockholder
agreements, voting trust agreements, buy-back agreements and all similar
arrangements)
3
<PAGE> 5
affecting Property. For the purposes hereunder, the Company or a Consolidated
Subsidiary shall be deemed to be the owner of any Property which it has acquired
or holds subject to a conditional sale agreement, Capitalized Lease or other
arrangement pursuant to which title to the Property has been retained by or
vested in some other Person for security purposes and such retention or vesting
shall constitute a Lien.
"Permitted Persons" means (i) Edward J. Shoen, Mark V. Shoen,
James P. Shoen, Paul F. Shoen, Sophia M. Shoen (and during the Plan Consummation
Period, only Samuel W. Shoen, Michael L. Shoen, Cecilia Shoen Hanlon and Katrina
Shoen Carlson) and the spouse and lineal descendants of each such individual,
the spouses of each such lineal descendants and the lineal descendants of such
spouses, (ii) any trusts for the primary benefit of, the executor or
administrator of the estate of, or other legal representative of, any of the
individuals referred to in the foregoing clause (i), and (iii) any corporation
with respect to which all the Voting Stock thereof is, directly or indirectly,
owned by any of the individuals referred to in the preceding clause (i).
"Plan Consummation Period" means the period beginning on the
Issue Date and ending on the date of purchase by the Company (directly or
indirectly) of non-serial common stock, par value $0.25 per share, of the
Company held by Samuel W. Shoen, Michael L. Shoen, Cecilia Shoen Hanlon and
Katrina Shoen Carlson or any corporation with respect to which all the Voting
Stock thereof is, directly or indirectly, owned by any of the foregoing
individuals.
"Priority Debt" means (i) indebtedness for money borrowed of
any Consolidated Subsidiary, except indebtedness for money borrowed issued to
and held by the Company or a Wholly Owned Consolidated Subsidiary, and (but
without duplication) (ii) Secured Indebtedness.
"Property" means any kind of property or asset, whether real,
personal or mixed, and whether tangible or intangible.
"Rating Agencies" means Standard & Poor's Rating Group, Duff &
Phelps Credit Rating Co. and Moody's Investors Service, Inc. or any successor to
the respective rating agency businesses thereof.
"Rating Date" means the date which is 90 days prior to the
earlier of (i) a Change of Control and (ii) public notice of the occurrence of a
Change of Control or of the intention of the Company to effect a Change of
Control.
"Rating Decline" means, with the respect to the Notes, the
occurrence of the following on, or within 90 days after, the date of public
notice of the occurrence of a Change of Control or of the intention by the
Company to effect a Change of Control (which period shall be extended so long as
the rating of such Notes is under publicly announced consideration for possible
downgrade by any of the Rating Agencies): (a) in the event the Notes were
assigned an Investment Grade Rating by at least two of the three Rating Agencies
on the Rating Date, the rating of the Notes by both Standard & Poor's Rating
Group and Moody's Investors Service, Inc. shall decrease below an Investment
Grade Rating; or (b) in the event the Notes were rated below an Investment Grade
Rating by at least two of the three Rating Agencies on the Rating Date, the
rating of the Notes by both Standard & Poor's Rating Group and Moody's Investors
Service, Inc. shall decrease by one or more gradations (including gradations
within rating categories as well as between rating categories).
"Rentals" means and includes, as of the date of any
determination thereof, all fixed payments (including as such all payments which
the lessee is obligated to make to the lessor on termination of the lease or
surrender of the Property) payable by the Company or a Consolidated Subsidiary,
as lessee or sublessee under a lease of real or personal Property, but shall be
exclusive of any amounts required to be paid by the Company or a Consolidated
Subsidiary (whether or not designated as rents or additional rents) on account
of maintenance, repairs, insurance, taxes and similar charges. Fixed rents under
any so-called "percentage leases" shall be computed solely on the basis of the
minimum rents, if any, required to be paid by the lessee regardless of sales
volume or gross revenues.
"Sale and Leaseback Transaction" has the meaning specified in
Section 602 hereof.
4
<PAGE> 6
"Secured Indebtedness" means any indebtedness for money
borrowed, whether of the Company or any Consolidated Subsidiary, secured by any
Lien on any Property of the Company or any Consolidated Subsidiary.
"Subsidiary" means a Person more than 50% of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Voting Stock" of a Person means all classes of Capital Stock
of such Person then outstanding and normally entitled to vote in the election of
directors (or Persons performing similar functions) or to direct the business
and affairs of the issuer of such Capital Stock in the absence of contingencies.
"Wholly Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the outstanding Capital Stock of which (except for directors'
qualifying shares to the extent required by applicable law) is owned by the
Company and/or its Wholly Owned Consolidated Subsidiaries.
SECTION 102. Debt Securities Indenture.
The Debt Securities Indenture, as supplemented by this
Supplemental Indenture, is in all respects ratified and confirmed, and this
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 103. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
ARTICLE TWO
FORM OF THE NOTES
SECTION 201. Form of the Face of the Notes.
The face of the Notes is to be substantially in the following
form:
[To be included on the face of any Note that is a Global Security:
This Note is a Global Security within the meaning of
the Supplemental Indenture hereinafter referred to and is registered in
the name of a Depository or a nominee of a Depository or a successor
depository. This Note is not exchangeable for Notes registered in the
name of a Person other than the Depository or its nominee except in the
limited circumstances described in the Debt Securities Indenture, and
no transfer of this Note (other than a transfer of this Note as a whole
by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository) may
be registered except in the limited circumstances described in the
Supplemental Indenture.]
[To be included on the face of any Note that is a Global Security where
DTC is the Depository:
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Company (as defined below) or its agent for
registration of transfer, exchange or payment, and any certificate
issued is registered int he name of Cede & Co. or in such other name as
is requested by an authorized representative of DTC, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.]
5
<PAGE> 7
AMERCO
7.85% Senior Notes Due 2003
No.__________ $__________
CUSIP No. 023586AA8
AMERCO, a corporation duly organized and existing
under the laws of Nevada (herein called the "Company", which terms
includes any successor Person under the Debt Securities Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________ or registered assigns, the principal sum of __________
_____________ on May 15, 2003 and to pay interest thereon from May 6,
1996 or from the most recent Interest Payment Date on which interest
has been paid or duly provided for, semi-annually on May 15 and
November 15 of each year (each an "Interest Payment Date") commencing
November 15, 1996, at the rate of 7.85% per annum (subject to an
increase due to the occurrence of certain rating events, as set forth
in more detail on the reverse hereof), until the principal hereof is
paid or made available for payment, and (to the extent that the payment
of such interest shall be legally enforceable) at the rate of 7.85% per
annum on any overdue principal (and premium, if any) and on any overdue
installment of interest. All capitalized terms used herein shall have
the respective meanings assigned thereto in the Supplemental Indenture
dated as of May 6, 1996 (the "Supplemental Indenture") between the
Company and Citibank, N.A., as Trustee (the "Trustee", which term
includes any successor trustee under the Debt Securities Indenture
referred to below), whether by cross-reference or otherwise. The
Supplemental Indenture is one of the supplemental indentures referred
to in and executed in accordance with the terms of the Debt Securities
Indenture dated as of May 1, 1996 between the Company and the Trustee.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Debt Securities
Indenture and the Supplemental Indenture, be paid to the Person in
whose name this Note (or one or more Predecessor Note) is registered at
the close of business on the Regular Record Date for such interest,
which shall be May 1 or November 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes not less
than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, all as more fully provided
in said Debt Securities Indenture and Supplemental Indenture.
Payment of the principal of (and premium, if any) and
any such interest on this Note will be made in the manner set forth in
the Supplemental Indenture, in immediately available funds in such coin
or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts, provided that
the Company may at its option pay interest by check in the case of a
Note that is not a Global Security. In the event that the Maturity or
Interest Payment Date is not a Business Day, then payment of interest
payable on such Maturity or Interest Payment Date, as the case may be,
shall be made on the next succeeding Business Day (and without any
interest or other payment in respect of any such delay), in each case
with the same force and effect as if made on such Maturity or Interest
Payment Date.
Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof and of the Supplemental
Indenture and the Debt Securities Indenture, which further provisions
shall for all purposes have the same effect as if set forth at this
place. In the event of any conflict between this Note on one hand and
the Supplemental Indenture and the Debt Securities Indenture, on the
other, the terms of the Supplemental Indenture and the Debt Securities
Indenture shall govern.
6
<PAGE> 8
Unless the certificate of authentication hereon has
been executed by the Trustee by manual signature, this Note shall not
be entitled to any benefit under the Debt Securities Indenture or the
Supplemental Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated: _______________
AMERCO
By________________________
Title:
ATTEST:
By_____________________
Title:
SECTION 202. Form of the Reverse of the Notes.
The Reverse of the Notes is to be substantially in the
following form:
This Note is one of a duly authorized issue of
securities of the Company (the "Notes) issued under the Debt Securities
Indenture and the Supplemental Indenture, to which Debt Securities
Indenture and Supplemental Indenture reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of
the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated
on the face hereof, limited in aggregate principal amount to
$175,000,000.
If at any time on or prior to December 31, 1996 (a)
the rating of the Notes by Standard & Poor's Rating Group shall
decrease below BBB-, or (b) the rating of the Notes by Moody's
Investors Service, Inc. shall decrease below Ba1, or (c) the rating of
the Notes by Duff & Phelps Credit Rating Co. shall decrease below BBB-,
then, from and including the Interest Payment Date next succeeding the
date on which any of the rating events described in clauses (a), (b) or
(c) shall have occurred, the interest rate payable on the Notes shall
be increased by 1.00% per annum. Such increased interest rate shall
remain in effect until the Interest Payment Date next succeeding the
date on which (i) the rating of the Notes by Standard & Poor's Rating
Group shall be equal to or higher than BBB-, (ii) the rating of the
Notes by Moody's Investors Service, Inc. shall be equal to or higher
than Ba1, and (iii) the rating of the Notes by Duff & Phelps Credit
Rating Co. shall be equal to or higher than BBB-, in which case the
interest rate on the Notes shall be restored from and including such
Interest Payment Date to 7.85% per annum.
Pursuant to Section 701 of the Supplemental
Indenture, upon the occurrence of a Change of Control Triggering Event
with respect to the Notes, each Holder of such Notes shall have the
right to require the Company to purchase such Holder's Notes, in whole
or in part, in a principal amount that is an integral multiple of
$1,000, at a purchase price equal to 101% of the principal amount
thereof on any Change of Control Payment Date plus accrued and unpaid
interest, if any, to the Change of Control Payment Date. The Holder of
this Note may elect to have this Note or a portion thereof, in an
authorized denomination purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below and tendering this
Note pursuant to the Change of Control Offer.
In the event that a Note is purchased in part only, a
new Note or Notes of like tenor for the unpurchased portion hereof will
be issued in the name of the Holder hereof upon the cancellation
7
<PAGE> 9
hereof, provided that each new note issued shall be in a principal
amount in denominations of $1,000 and integral multiples thereof.
The Notes may not be redeemed prior to Maturity and
shall not be subject to any sinking fund.
The Notes shall be general unsecured obligations of
the Company. The Notes shall rank pari passu in right of payment with
all senior indebtedness of the Company and senior in right of payment
to any subordinated indebtedness of the Company.
If an Event of Default with respect to the Notes
shall occur and be continuing, the principal of the Notes may be
declared due and payable in the manner and with the effect provided in
the Debt Securities Indenture and the Supplemental Indenture.
The Debt Securities Indenture and the Supplemental
Indenture permit, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Notes to be affected
at any time by the Company and the Trustee with the consent of the
Holders of a majority of aggregate principal amount or at least
two-thirds of the aggregate principal amount, as applicable, of the
Notes at the time Outstanding. The Debt Securities Indenture and the
Supplemental Indenture also contain provisions permitting the Holders
of specified percentages in principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all Notes, to waive compliance
by the Company with certain provisions of the Debt Securities Indenture
and the Supplemental Indenture and certain past defaults under the Debt
Securities Indenture and the Supplemental Indenture and their
consequences. Any such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or
not notation of such consent or waiver is made upon this Note.
No reference herein to the Debt Securities Indenture
and the Supplemental Indenture and no provision of this Note or of the
Debt Securities Indenture or the Supplemental Indenture shall alter or
impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and any premium and interest on
this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Debt Securities Indenture and the
Supplemental Indenture, and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security
Register, upon surrender of this Note for registration of transfer at
the office or agency of the Company in any place where the principal of
and any premium and interest on this Note are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of like tenor, of authorized
denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Debt Securities Indenture and the Supplemental
Indenture contain provisions for defeasance at any time of (a) the
entire amount of the Notes and (b) certain restrictive covenants and
related Events of Default, in each case, upon compliance with certain
conditions set forth therein.
The Notes are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Debt Securities Indenture and the
Supplemental Indenture and subject to certain limitations therein set
forth, Notes are exchangeable for a like aggregate principal amount of
Notes of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
8
<PAGE> 10
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this
Note be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
This Note shall be governed by and construed in
accordance with the laws of the State of New York.
9
<PAGE> 11
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
In connection with the Change of Control Offer made pursuant
to Section 701 of the Supplemental Indenture, the undersigned
registered Holder hereby elects to have
/ / the entire principal amount
/ / $________ ($1,000 in principal amount or an integral
multiple thereof) of this Note
repurchased by the Company. The undersigned hereby directs the
Trustee or Paying Agent to pay it or __________________ an
amount in cash equal to 101% of the principal amount indicated
in the preceding sentences plus accrued and unpaid interest
thereon, if any, to the Change of Control Payment Date.
Dated:__________________
______________________________ ______________________________
Signature of Registered Holder Signature Guaranteed
NOTICE: The signature to the foregoing must correspond to the
Name as written upon the face of this Security in every
particular, without alteration or any change whatsoever.
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned registered Holder
hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification Number:
__________________________________________
Please print or type name and address, including
the zip code of the assignee:
___________________________________________
the attached Note and all rights thereunder, hereby irrevocably
constituting and appointing
___________________________________________
as attorney to transfer said Note on the books of the Company with full
power and substitution in the premises.
Date:_____________________
_____________________________________
NOTE: The signature to this
assignment must correspond with the
name as written upon the face of the
attached Note in every particular,
without alteration or change
whatsoever.
10
<PAGE> 12
SECTION 203. Form of the Certificate of Authentication.
The Trustee's Certificate of Authentication to be endorsed on
the Notes is to be substantially in the following form:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated therein referred to in the within-mentioned Debt Securities
Indenture.
Citibank, N.A.,
as Trustee
By:__________________________
Authorized Signatory
ARTICLE THREE
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 301. Designation of Securities and Amounts Thereof.
There shall be and is hereby authorized a single series of
Securities designated the "7.85% Senior Notes Due 2003" (herein called the
"Notes"), limited in aggregate principal amount to $175,000,000.
SECTION 302. Payment of Principal and Interest.
The Notes shall mature and the principal shall be due and
payable in Dollars to the Holders thereof (subject to Section 304 hereof),
together with all accrued and unpaid interest thereon, on May 15, 2003 (the
"Maturity" for the purposes of the Notes under this Supplemental Indenture).
The Notes shall bear interest at 7.85% per annum, subject to
the provisions of the following paragraph, from and including May 6, 1996 or
from the most recent Interest Payment Date (defined below) on which interest has
been paid or provided for until the principal thereof becomes due and payable,
and on any overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum. Interest on the Notes shall be payable semiannually in
arrears in Dollars on May 15 and November 15 of each year, commencing on
November 15, 1996 (each such date, an "Interest Payment Date" for the purposes
of the Notes under this Supplemental Indenture). Payments of interest shall be
made to the Person in whose name a Note (or predecessor Note) is registered
(which shall initially be the Depository, as set forth in Section 304 hereof) at
the close of business on the May 1 or November 1, as the case may be, next
preceding such Interest Payment Date (each such date, a "Regular Record Date"
for the purposes of the Notes under this Supplemental Indenture).
If at any time on or prior to December 31, 1996 (a) the rating
of the Notes by Standard & Poor's Rating Group shall decrease below BBB-, or (b)
the rating of the Notes by Moody's Investors Service, Inc. shall decrease below
Ba1, or (c) the rating of the Notes by Duff & Phelps Credit Rating Co. shall
decrease below BBB- , then, from and including the Interest Payment Date next
succeeding the date on which any of the rating events described in clauses (a),
(b) or (c) shall have occurred, the interest rate payable on the Notes shall be
increased by 1.00% per annum. Such increased interest rate shall remain in
effect until the Interest Payment Date next succeeding the date on which (i) the
rating of the Notes by Standard & Poor's Rating Group shall be equal to or
higher than BBB-, (ii) the rating of the Notes by Moody's Investors Service,
Inc. shall be equal to or higher than Ba1, and (iii) the rating of the Notes by
Duff & Phelps Credit Rating Co. shall be equal to or higher than
11
<PAGE> 13
BBB-, in which case the interest rate on the Notes shall be restored from and
including such Interest Payment Date to 7.85% per annum.
For so long as the Notes are represented by Global Securities,
all payments of principal and interest shall be made by the Company in
immediately available funds in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts, provided that the Company may at its option pay interest by check
in the case of a Note that is not a Global Security.
In the event that the Maturity or any Interest Payment Date is
not a Business Day, then payment of interest payable on such Maturity or
Interest Payment Date, as the case may be, shall be made on the next succeeding
Business Day (and without any interest or other payment in respect of any such
delay), in each case with the same force and effect as if made on such Maturity
or Interest Payment Date.
For so long as and to the extent that the Notes are
represented by a Global Security pursuant to Section 304 hereof, payments of
principal and interest shall be made in accordance with said Section 304. All
other payments of principal and interest shall be made to the registered Holders
thereof by a Paying Agent that the Company shall maintain, in the event that
definitive Notes shall have been issued, in The City of New York.
The Notes may not be redeemed prior to Maturity and shall not
be subject to any sinking fund.
SECTION 303. Ranking.
The Notes shall be general unsecured obligations of the
Company. The Notes shall rank pari passu in right of payment with all senior
indebtedness of the Company and senior in right of payment to any subordinated
indebtedness of the Company.
SECTION 304. Book-Entry System
The Notes shall be represented by one or more permanent global
notes (each, a "Global Security") deposited with, or on behalf of, The
Depositary Trust Company, as Depository under the Debt Securities Indenture and
this Supplemental Indenture (the "Depository"), and registered in the name of
the Depository's nominee. Except as set forth in the following paragraph, (1)
owners of beneficial interests in a Global Security shall not be entitled to
have Notes represented by such Global Securities registered in their names, will
not receive or be entitled to receive physical delivery of Notes in definitive
form and shall not be considered the owners or Holders thereof under the Debt
Securities Indenture and this Supplemental Indenture and (2) each Global
Security may be transferred, in whole and not in part, only to another nominee
of the Depository or to a successor of the Depository or its nominee.
Accordingly, beneficial interests in the Notes shall be shown on, and transfers
thereof shall be effected only through, records maintained by the Depository and
its participants.
Notwithstanding any provisions of Section 305 of the Debt
Securities Indenture, no Note that is a Global Security shall be registered for
transfer or exchange, or be authenticated and delivered, and owners of
beneficial interests in any Global Security will not be entitled to receive
Notes in definitive form and will not be considered Holders of Notes unless (1)
the Depository notifies the Company that it is unwilling or unable to continue
as Depository for such Global Security or if at any time the Depository ceases
to be a clearing agency registered under the Exchange Act, (2) the Company
executes and delivers to the Trustee a Company Order that such Global Security
shall be so exchangeable or (3) there shall have occurred and be continuing a
Default or an Event of Default. In such circumstances, upon surrender by the
Depository or a successor depository of any Global Security, Notes in definitive
form will be issued to each Person that the Depository or successor depository
identifies as the beneficial owner of the related Notes. Upon such issuance, the
Trustee is required to register such Notes in the name of, and cause such Notes
to be delivered to, such Person or Persons (or nominees thereof). Such Notes
would be issued in fully registered form without coupons, in denominations of
$1,000 and integral multiples thereof.
12
<PAGE> 14
The Depository shall be permitted to take any action permitted
to be taken by an owner or Holder of Notes only at the direction of one or more
participants in the Depository, as it may from time to time determine.
Principal and interest payments on Notes registered in the
name of or held by the Depository or its nominee shall be made to the Depository
or its nominee, as the case may be, as the registered owner of the Global
Security representing such Notes. The Company and the Trustee shall treat the
Persons in whose names the Notes are registered as the Holders of such Notes for
the purpose of receiving payment of principal and interest on such Notes and for
all other purposes whatsoever. Therefore, none of the Company, the Trustee or
any Paying Agent has direct responsibility or liability for the payment of
principal and interest on the Notes to owners of beneficial interests in any
Global Security. Payments by direct and indirect participants in the Depository
shall be the responsibility of such participants.
The Notes shall trade in the Depository's Same-Day Funds
Settlement System until Maturity (or until they are subject to repurchase
pursuant to Section 701 hereof or acceleration pursuant to Article Five of the
Debt Securities Indenture), and secondary market trading activity in the Notes
may be required by the Depository to settle in immediately available funds.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Defeasance of the Notes
The Notes shall be subject to defeasance in accordance with
the provisions of Section 403 of the Debt Securities Indenture.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default
For all purposes of the Debt Securities Indenture and this
Supplemental Indenture relating to the Notes, the following shall be Events of
Default in addition to the Events of Default enumerated in Section 501 of the
Debt Securities Indenture:
(a) a default (including a default with respect to
debt Securities of any series other than the Notes) under any Debt of
the Company or any Subsidiary thereof, which default shall have
resulted (i) in a failure to pay an aggregate principal amount
exceeding $10,000,000 of such Debt at the later of final maturity
thereof or upon the expiration of any applicable period of grace with
respect to such principal amount or (ii) in such Debt in an aggregate
principal amount exceeding $10,000,000 becoming or being declared due
and payable prior to the date on which it would otherwise have become
due and payable, without such Debt having been discharged, or such
acceleration having been rescinded or annulled, within a period of 15
days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Notes, a written notice specifying such default and requiring the
Company to cause such Debt to be discharged or to cause such
acceleration to be rescinded or annulled and stating that such notice
is a "Notice of Default" hereunder; provided, however, that the Trustee
shall not be deemed to have knowledge of such default unless either (A)
an officer in the Corporate Trust Department of the Trustee shall have
actual knowledge of such default or (B) the Trustee shall have received
written notice thereof from the Company, from any Holder, from the
holder of any such Debt or from the trustee under any such mortgage,
indenture or other instrument; and
13
<PAGE> 15
(b) the failure to perform the obligations of the
Company set forth in Section 701 hereof (including the obligation to
purchase the Notes required to be purchased pursuant to a Change of
Control Offer in accordance with the terms of such Change of Control
Offer).
ARTICLE SIX
COVENANTS
The Company covenants and agrees for the benefit of the
Holders of the Notes that it will comply with all covenants contained in the
Debt Securities Indenture and with such further covenants that are contained in
this Article Six and in any other provisions of this Supplemental Indenture.
SECTION 601. Limitation on Liens Securing Indebtedness.
The Company shall not, and shall not permit any Consolidated
Subsidiary to, create or incur, or suffer to be incurred or to exist, at any
time, any Lien on its or their Property, whether now owned or hereafter
acquired, or upon any income or profits therefrom, to secure the payment of any
indebtedness for money borrowed of the Company or of any Consolidated Subsidiary
or of any other Person, unless all obligations of the Company on or in respect
of the Notes are equally and ratably and validly secured by such Lien by
proceedings and documents reasonably satisfactory to the Trustee, except that
the provisions of this Section 601 shall not prohibit the following:
(a) Liens existing as of the Issue Date securing
indebtedness for money borrowed of the Company and its Consolidated
Subsidiaries outstanding on such date;
(b) Liens (i) incurred after the Issue Date given (on
or within 120 days of the date of acquisition, construction or
improvement) to secure the payment of the purchase price or
construction costs incurred by the Company or a Consolidated Subsidiary
in connection with the acquisition, construction or improvement of real
and personal Property useful and intended to be used in carrying on the
business of the Company or such Consolidated Subsidiary, or (ii) on
fixed assets useful and intended to be used in carrying on the business
of the Company or a Consolidated Subsidiary existing at the time of
acquisition or construction thereof by the Company or such Consolidated
Subsidiary or at the time of acquisition by the Company or a
Consolidated Subsidiary of any business entity then owning such fixed
assets, whether or not such existing Liens were given to secure the
payment of the purchase price or construction costs of the fixed assets
to which they attach, so long as Liens permitted by this clause (ii)
were not incurred, extended or renewed in contemplation of such
acquisition or construction, provided that any such Liens permitted by
this clause (b) shall attach solely to the Property acquired,
constructed, improved or purchased.
(c) Liens for taxes, assessments or other
governmental levies or charges not yet due or which are subject to a
Good Faith Contest;
(d) Liens incidental to the conduct of the Company's
and its Subsidiaries' businesses or their ownership of Property and
other assets not securing any indebtedness for money borrowed and not
otherwise incurred in connection with the borrowing of money or
obtaining of credit, and which do not in the aggregate materially
diminish the value of the Company's or Subsidiaries' Property or assets
when taken as a whole, or materially impair the use thereof in the
operation of their businesses;
(e) Liens in respect of any interest or title of a
lessor in any Property subject to a Capitalized Lease permitted under
Section 602 hereof;
(f) Liens arising in respect of judgments against the
Company, except for any judgment in an amount in excess of $1,000,000
which is not discharged or execution thereof stayed pending appeal
within 45 days after entry thereof;
14
<PAGE> 16
(g) Liens in favor of the Company or any Consolidated
Subsidiary of the Company;
(h) Liens consisting of minor survey exceptions or
minor encumbrances, easements or reservations, or rights of others for
rights-of-way, utilities and other similar purposes, or zoning or other
restrictions as to use of real Property, that are necessary for the
conduct of the operations of the Company and its Subsidiaries or that
customarily exist on properties of corporations engaged in similar
businesses and are similarly situated and that do not in any event
materially impair their use in the operations of the Company and its
Subsidiaries; and
(i) Liens renewing, extending or refunding any Lien
permitted by the preceding clauses of this Section 601; provided,
however, that the principal amount of indebtedness for money borrowed
secured by such Lien immediately prior thereto is not increased and
such Lien is not extended to any other assets or Property.
Notwithstanding the foregoing, the Company or any Consolidated
Subsidiary may create or assume Liens, in addition to those otherwise permitted
by the preceding clauses of this Section 601, securing indebtedness for money
borrowed of the Company or any Consolidated Subsidiary issued or incurred after
the Issue Date, provided that at the time of such issuance or incurrence, the
aggregate amount of all Secured Indebtedness and Attributable Debt would not
exceed 15% of Consolidated Net Tangible Assets.
In the event that any Property of the Company or any
Consolidated Subsidiary is subjected to a Lien not otherwise permitted by this
Section 601, the Company shall make or cause to be made a provision whereby the
Notes shall be secured (together with other indebtedness for money borrowed then
entitled thereto and equal in rank to the Notes), to the full extent permitted
under applicable law, equally and ratably with all other obligations secured
thereby, and in any case the Notes shall (but only in such event) have the
benefit, to the full extent that the Holders of the Notes may be entitled
thereto under applicable law, of an equitable Lien on such Property equally and
ratably securing the Notes and such other obligations.
SECTION 602. Limitation on Sale and Leaseback.
The Company shall not enter, and shall not permit any
Consolidated Subsidiary to, enter into any arrangement, directly or indirectly,
whereby the Company or such Consolidated Subsidiary shall, in one transaction or
a series of related transactions, (x) sell, transfer or otherwise dispose of any
Property owned by the Company or any Consolidated Subsidiary and (y) more than
120 days after the later of the date of initial acquisition of such Property or
completion or occupancy thereof, as the case may be, by the Company or such
Consolidated Subsidiary, rent or lease, as lessee, such Property or
substantially identical Property or any material part thereof (a "Sale and
Leaseback Transaction"), provided that the foregoing restriction shall not apply
to any Sale and Leaseback Transaction if (a) immediately after the consummation
of such Sale and Leaseback Transaction and after giving effect thereto, no
Default or Event of Default shall exist and (b) any one of the following
conditions is satisfied:
(i) the lease concerned constitutes a Capitalized Lease
and at the time of entering into such Sale and Leaseback Transaction
and after giving effect thereto and to any Liens incurred pursuant to
Section 601 hereof, the aggregate amount of all Secured Indebtedness
and Attributable Debt would not exceed 15% of Consolidated Net Tangible
Assets; or
(ii) the lease has a term which in the aggregate would not
exceed 36 months (including any extensions or renewals thereof at the
option of the lessee); or
(iii) the sale of such Property is for cash consideration
which equals or exceeds the fair market value thereof (as determined in
good faith by the Company) and the net proceeds from such sale are
applied, within 30 days of the date of the sale thereof, to the payment
(other than payments due at maturity or in satisfaction of, or applied
to, any mandatory or scheduled payment or prepayment
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obligation) of indebtedness for money borrowed of the Company which
ranks, in right of payment, on a parity with or senior to the Notes.
SECTION 603. Restrictive Agreements.
The Company shall not enter, and shall not permit any of its
Consolidated Subsidiaries to enter, into any indenture, agreement, instrument or
other arrangement which, directly or indirectly, prohibits or restrains, or has
the effect of prohibiting or restraining, or imposes materially adverse
conditions upon, the ability of any Consolidated Subsidiary to make loans or
advances to the Company or to declare and pay dividends or make distribution on
shares of such Consolidated Subsidiary's capital stock (whether now or hereafter
outstanding); provided, however, that any agreement to subordinate indebtedness
for money borrowed, owing from any Consolidated Subsidiary to the Company or
owing between Consolidated Subsidiaries pursuant to any Priority Debt or to any
guarantee of such indebtedness for money borrowed, shall not be deemed to
violate this Section 603 so long as any such agreement to subordinate does not
directly or indirectly prohibit or restrain the ability of any such Consolidated
Subsidiary to make loans or advances to the Company or to declare and pay
dividends or make distributions on shares of such Consolidated Subsidiary's
capital stock (whether now or hereafter outstanding).
SECTION 604. Corporate Existence.
The Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence and
material rights (charter and statutory) and material franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors of the Company shall determine that
the preservation of such rights and franchises is no longer desirable in the
conduct of the business of the Company and its Consolidated Subsidiaries
considered as a whole, and that the loss thereof is not disadvantageous in any
material respect to the Holders of the Notes.
SECTION 605. Defeasance of Certain Obligations.
The Company may omit to comply with the covenants contained in
Sections 601, 602, 603 and 701 hereof, and violations of such covenants shall
not be deemed to be an Event of Default hereunder, under the Debt Securities
Indenture and under the Notes, to the extent that all of the conditions set
forth in Section 1004 of the Debt Securities Indenture have been met.
ARTICLE SEVEN
PURCHASE OF SECURITIES
SECTION 701. Purchase of Securities at the Option of Holders Upon a Change of
Control.
(a) Upon the occurrence of a Change of Control Triggering
Event, each Holder of Notes shall have the right to require the Company to
purchase all or any part (equal to $1,000 or an integral multiple thereof) of
such Holder's Notes pursuant to the offer described below (the "Change of
Control Offer") at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the purchase date
(the "Change of Control Purchase Price") in accordance with the procedures set
forth in this Section 701.
(b) Within 30 days of any Change of Control Triggering Event,
the Company shall (i) cause a notice of the Change of Control Offer to be sent
at least once to the Dow Jones News Service or similar business news service in
the United States and (ii) send by first-class mail, postage prepaid, to the
Trustee and to each Holder of the Notes, at its address appearing in the
Securities Register for the Notes, a notice stating:
(1) that a Change of Control Triggering Event has occurred and a
Change of Control Offer is being made pursuant to Section 701
of this Supplemental Indenture and that all Notes timely
tendered shall be accepted for payment, subject to the terms
and conditions set forth herein;
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(2) the Change of Control Purchase Price and the purchase date,
which date shall be, subject to any contrary requirements of
applicable law, a Business Day no earlier than 30 days nor
later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date");
(3) that any Note (or portion thereof) accepted for payment (and
duly paid on the Change of Control Payment Date) pursuant to
the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(4) that any Notes (or portions thereof) not tendered shall
continue to accrue interest;
(5) a description of the transaction or transactions constituting
the Change of Control Triggering Event;
(6) that Holders accepting the offer to have their Notes purchased
pursuant to a Change of Control Offer will be required to
surrender such Notes, accompanied by a duly completed form of
"Option of Holder to Elect Purchase" contained on the reverse
of such Notes, to the Trustee as Securities Registrar at a
Place of Payment specified in the notice (or otherwise make
effective delivery of the Note and form of "Option of Holder
to Elect Purchase" pursuant to book-entry procedures and the
related rules of the Depository) prior to the close of
business on the Business Day preceding the Change of Control
Payment Date;
(7) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, provided that
each Note purchased and each such new Note issued shall be in
a principal amount in denominations of $1,000 and integral
multiples thereof; and
(8) any other procedures (if any) that Holders of Notes must
follow in order to accept a Change of Control Offer or effect
withdrawal of such acceptance.
(c) On the Change of Control Payment Date, the Company shall
(i) accept for payment the Notes or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Trustee money sufficient to pay
the aggregate Change of Control Purchase Price and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers'
Certificate indicating the Notes or portions thereof tendered to the Company.
The Trustee shall promptly mail to each Holder of Notes so accepted payment in
an amount equal to the Change of Control Purchase Price for such Notes, and the
Trustee shall promptly authenticate and mail to such Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, provided
that each such new Note shall be issued in an original principal amount in
denominations of $1,000 and integral multiples thereof.
(d) The Company shall comply, to the extent then applicable
and required by law, with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder in connection with the
purchase of Notes pursuant to the Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions relating to the Change of Control Offer, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations described above by virtue thereof.
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ARTICLE EIGHT
MODIFICATIONS
SECTION 801. Modification or Amendment
Modifications and amendments to this Supplemental Indenture
shall be made in accordance with Article Nine and the other provisions of the
Debt Securities Indenture. Notwithstanding anything in Article Nine of the Debt
Securities Indenture to the contrary, modification or amendment to this
Supplemental Indenture or the Debt Securities Indenture may not waive the
Company's obligation to make a Change of Control Offer without the written
consent of the Holders of a least two-thirds in aggregate principal amount of
the then Outstanding Notes.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
AMERCO
By:__________________________________
Gary V. Klinefelter
Secretary
Attest:
__________________________________
John A. Lorentz
Assistant Secretary
CITIBANK, N.A.
as Trustee
By___________________________________
Louis Piscitelli
Senior Trust Officer
Attest:
__________________________________
Name:
Title:
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STATE OF ARIZONA )
COUNTY OF MARICOPA ) ss.:
On the 6th day of May, 1996, before me personally came Gary V.
Klinefelter, to me known, who, being by me duly sworn, did depose and say that
he is Secretary of AMERCO, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to the said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said corporation; and that
he signed his name thereto by like authority.
___________________________
Name:
Notary Public
State of Arizona
My Commission expires on:
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On the 6th day of May, 1996, before me personally came Louis
Piscitelli, to me known, who, being by me duly sworn, did depose and say that he
is Senior Trust Officer of Citibank, N.A., one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
___________________________
Name:
Notary Public
State of New York
My Commission expires on:
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