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UNITED STATES
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 5, 1999
AMERCO
(Exact name of registrant as specified in its charter)
Nevada 1-11255 88-0106815
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1325 Airmotive Way, Suite 100, Reno, Nevada 89502
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (775) 688-6300
NONE
(Former name or former address, if changed since last report.)
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ITEMS 1-6. Not Applicable.
ITEM 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not Applicable
(b) Not Applicable
(c) Exhibits
Exhibit No.
-----------
Underwriting Agreement, dated March 26, 1999 1.1
Senior Indenture, dated April 1, 1999 4.1
Form of senior Global Note (included in Exhibit 4.3) 4.2
First Supplemental Indenture, dated April 5, 1999 4.3
ITEM 8. Not Applicable
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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
Date: April 5, 1999. By: /s/ Gary V. Klinefelter
------------------------
Gary V. Klinefelter
Secretary
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INDEX TO EXHIBITS
Exhibit No.
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Underwriting Agreement, dated March 26, 1999 1.1
Senior Indenture, dated April 1, 1999 4.1
Form of senior Global Note (included in Exhibit 4.3) 4.2
First Supplemental Indenture, dated April 5, 1999 4.3
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Exhibit 1.1
Execution Copy
AMERCO
(a Nevada corporation)
$150,000,000
7.20% Senior Notes Due 2002
UNDERWRITING AGREEMENT
March 26, 1999
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TABLE OF CONTENTS
Page
SECTION 1 Representations and Warranties.......................................2
SECTION 2 Purchase and Sale....................................................7
SECTION 3 Delivery and Payment.................................................7
SECTION 4 Covenants of the Company.............................................8
(a) Notice of Certain Events.............................................8
(b) Notice of Certain Proposed Filings...................................8
(c) Copies of the Registration Statement and the Prospectus..............9
(d) Filing of Amendments.................................................9
(e) Copies of Amendments.................................................9
(f) Copies of Public Reports and Required Filings........................9
(g) Revisions of Prospectus - Material Changes...........................9
(h) Earnings Statements.................................................10
(i) Blue Sky Qualifications.............................................10
(j) 1934 Act Filings....................................................10
(k) Restriction on Sale of Securities...................................10
(l) Investment Company Act..............................................11
SECTION 5 Conditions of Underwriters' Obligations.............................11
(a) Stop Order and Effectiveness........................................11
(b) Statements Within Registration Statement or Prospectus..............11
(c) Corporate Proceedings; Legal Matters................................11
(d) Legal Opinions......................................................12
(e) Officer's Certificate...............................................18
(f) Comfort Letter......................................................19
(g) Changes Affecting the Securities....................................19
(h) Credit Downgrade....................................................19
(i) Other Documents.....................................................19
SECTION 6 Reimbursement of Underwriters' Expenses.............................20
SECTION 7 Indemnification.....................................................20
(a) Indemnification of the Underwriters.................................20
(b) Indemnification of Company..........................................21
(c) General.............................................................22
SECTION 8 Contribution........................................................22
SECTION 9 Payment of Expenses.................................................23
SECTION 10 Representations, Warranties and Agreements to Survive Delivery.....24
(i)
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SECTION 11 Termination........................................................24
(a) Termination; General...............................................24
(b) Liabilities........................................................25
SECTION 12 Defaulting Underwriters............................................25
SECTION 13 Notices............................................................25
SECTION 14 Governing Law......................................................25
SECTION 15 Parties............................................................26
SECTION 16 Effect of Headings.................................................26
SECTION 17 Counterparts.......................................................26
(ii)
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AMERCO
7.20% Senior Notes Due 2002
UNDERWRITING AGREEMENT
March 26, 1999
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs and Madams:
AMERCO, a Nevada corporation (the "Company"), the direct parent of the
subsidiaries named in Schedule III hereto confirms its agreement with the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives with respect to the issue and
sale by the Company of the principal amount of its securities identified in
Schedule I hereto (the "Securities"). The Securities are to be issued pursuant
to a Senior Indenture (the "Indenture") dated as of April 1, 1999 between the
Company and The Bank of New York, as trustee (the "Trustee"), as supplemented by
a Supplemental Indenture, to be dated as of the Closing Date (as hereinafter
defined), between the Company and the Trustee (the "Supplemental Indenture").
The Securities are to be issued pursuant to resolutions adopted by the Board of
Directors of the Company. As of the date hereof, the Company has authorized the
issuance and sale of up to U.S. $150,000,000 aggregate principal amount of
Securities through the Underwriters pursuant to the terms of this Agreement. If
the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm or
firms.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (File No. 333-73357) with respect to
the registration of debt securities, including the Securities, in conformity
with the requirements of the Securities Act of 1933, as amended (the "1933
Act"), and the offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the SEC under 1933 Act (the "1933 Act
Regulations"). Such registration statement has become effective under the 1933
Act. If any post-effective amendment to such registration statement has been
filed with the SEC prior to the Representation Date (as defined below), the most
recent such amendment has been declared effective by the SEC. Copies of such
registration statement and any amendments thereto have been delivered by the
Company to the Underwriters.
As used in this Agreement, "Effective Time" means the date and the time
as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the SEC; and "Effective
Date" means the date of the Effective Time. As provided in Section 3(a), a
prospectus supplement reflecting the terms of the Securities, the terms of the
offering thereof and the other matters set forth therein has been prepared and
will be filed pursuant to Rule 424 under the 1933 Act ("Rule 424"). In addition,
a preliminary prospectus supplement
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reflecting the terms of the Securities, the terms of the offering thereof, and
the other matters set forth therein also may be prepared and filed pursuant to
Rule 424. Such prospectus supplement, in the form filed on or after the date of
this Agreement pursuant to Rule 424, is referred to in this Agreement as the
"Prospectus Supplement," and any such preliminary prospectus supplement in the
form filed after the date of this Agreement pursuant to Rule 424 is referred to
as the "Preliminary Prospectus Supplement." Any prospectus accompanied by a
Preliminary Prospectus Supplement is referred to in this Agreement, collectively
with such Preliminary Prospectus Supplement, as a "Preliminary Prospectus." The
registration statement referred to in this preamble, as amended, including the
exhibits thereto and the documents filed by the Company with the SEC pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), including any
exhibits thereto, that are incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act (the "Incorporated Documents"), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information"), is called the "Registration
Statement"; and the basic prospectus included therein relating to all offerings
of securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is called the "Prospectus," except that, if such basic
prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term "Prospectus"
shall refer to the basic prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case including the
Incorporated Documents. Any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual or interim report
of the Company or other documents filed pursuant to Section 13(a) or 15(d) of
the 1934 Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement. Notwithstanding the
foregoing, any prospectus supplement prepared or filed with respect to an
offering pursuant to the Registration Statement of securities other than the
Securities shall not be deemed to have supplemented the Prospectus.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, the
Representative and to each Underwriter named in Schedule II hereto, as of the
date hereof and as of the Closing Date as follows:
(i) Due Incorporation and Foreign Qualification. Each of the
Company and its subsidiaries has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its organization, with full power and authority
(corporate and other) to own or lease its properties and conduct its
business as described in the Prospectus and is duly qualified to do
business and is in good standing in each jurisdiction in which the
character of the business conducted by it or the location of the
properties owned or leased by it make such qualification necessary,
except where the failure so to qualify would not have a material
adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole; and none of the subsidiaries of the
Company, other than any so identified in Schedule III to this
Agreement, is a "significant subsidiary," as such term is defined in
Rule 405 of the 1933 Act Regulations.
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(ii) Registration Statement and Prospectus; Incorporated
Documents; Indenture. The Company meets the requirements for the use of
Form S-3 under the 1933 Act. The Registration Statement has become
effective; no stop order suspending the effectiveness of the
Registration Statement is in effect; and no proceedings for such
purpose are pending before or, to the Company's knowledge, threatened
by the SEC. The Registration Statement conformed, on the Effective Date
or (with respect to Incorporated Documents) on the date of filing
thereof with the SEC, in all material respects, to the requirements of
the 1933 Act and the 1933 Act Regulations, and the Registration
Statement on the Effective Date did not contain and at the Time of
Delivery (as defined below) will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with SEC,
as the case may be, will conform in all material respects to the
requirements of the 1933 Act or the 1934 Act, as applicable, and the
rules and regulations of the SEC thereunder and will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and on the
Effective Date, the Indenture conformed and will conform in all
material respects with the requirements of the Trust Indenture Act of
1939, as amended (the "1939 Act"), and the applicable rules and
regulations thereunder; provided that no representation or warranty is
made as to information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter specifically for inclusion therein (which information shall
be determined as set forth in Section 7(b) hereof) or that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the 1939 Act.
(iii) Accountants. PricewaterhouseCoopers LLP, whose report is
incorporated by reference in the Prospectus, are independent certified
public accountants within the meaning of the 1933 Act and the 1933 Act
Regulations. The financial statements and schedules (including the
related notes and supporting schedules) included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial condition, results of operations and changes in
financial condition of the entities purported to be shown thereby at
the dates and for the periods indicated and have been prepared in
accordance with generally accepted accounting principles.
(iv) Capital Stock of Subsidiaries. All of the issued shares
of capital stock of each significant subsidiary (as such term is
defined in Rule 405 of the 1933 Act Regulations) of the Company have
been duly and validly authorized and issued and are fully paid,
non-assessable (except for the shares of capital stock of Oxford Life
Insurance Company and Republic Western Insurance Company that are
further assessable to the extent of their respective par values in
accordance with Article 14, Section 11 of the Constitution of the State
of Arizona) and are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(v) Authorization and Validity of this Agreement. This
Agreement has been duly authorized, executed and delivered by the
Company and constitutes the valid and
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binding agreement of the Company and is enforceable against the Company
in accordance with its terms.
(vi) Authorization and Validity of the Securities. The Company
has all of the requisite corporate power and authority to execute,
issue and deliver the Securities and to incur and perform its
obligations provided for therein; the Securities have been duly
authorized by the Company and, when executed and authenticated in
accordance with the provisions of this Agreement, the Indenture and the
Supplemental Indenture and delivered to and paid for by the
Underwriters as provided for in this Agreement, will have been duly
executed, authenticated (assuming due authentication by the Trustee),
issued and delivered and will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture
and the Supplemental Indenture and enforceable against the Company in
accordance with their terms; and the Securities conform in all material
respects to the description thereof contained in the Prospectus.
(vii) Authorization and Validity of the Indenture and the
Supplemental Indenture. The Company has all of the requisite corporate
power and authority to execute and deliver the Indenture and the
Supplemental Indenture and to perform its obligations provided for
therein; the Indenture and the Supplemental Indenture have been duly
authorized by the Company and have been duly qualified under the 1939
Act, will be substantially in the form heretofore delivered to the
Underwriters and, upon due execution and delivery by the Company, and
assuming due execution and delivery by the Trustee, will constitute a
legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms; and the Indenture and the
Supplemental Indenture conforms in all material respects to the
descriptions thereof contained in the Prospectus.
(viii) Material Changes. Except as described in or
contemplated by the Prospectus, there has not been any material adverse
change in, or adverse development which materially affects, the
condition (financial or other), results of operations, assets, business
or prospects of the Company and its subsidiaries taken as a whole, from
the date as of which information is given in the Prospectus.
(ix) No Defaults; Regulatory Approvals. Neither the Company
nor any of its subsidiaries is, or with the giving of notice or lapse
of time or both would be, in violation of or in default under its
respective articles or certificate of incorporation or by-laws, or any
bond, debenture, note or any other
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evidence of indebtedness or any indenture, mortgage, deed of trust or
other material agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them is bound, or
to which any of their properties is subject, where such violation or
default would have a material adverse effect on the condition
(financial or other), results of operations, assets, business or
prospects of the Company and its subsidiaries taken as a whole. The
execution and delivery, fulfillment and consummation of the
transactions contemplated by this Agreement, the Indenture, the
Supplemental Indenture and the Securities will not conflict with or
constitute a breach of, or a default (with the passage of time or the
giving of notice or otherwise) under, or result in the imposition of a
lien on any properties of the Company or any of its subsidiaries, or an
acceleration of indebtedness pursuant to, the articles or certificate
of incorporation or by-laws of the Company or any of its subsidiaries,
or any bond, debenture, note or any other evidence of indebtedness of
any indenture, mortgage, deed of trust or other material agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them is bound, or to which any of the property
or assets of the Company or any of its subsidiaries is subject, or any
law, rule, administrative regulation, order or decree of any court or
any governmental agency or body having jurisdiction over the Company,
any of its subsidiaries or any of their respective properties. Except
for the orders of the SEC declaring the Registration Statement
effective under the 1933 Act and permits and similar authorizations
required under the securities or "Blue Sky" laws of certain
jurisdictions, no consent, approval, authorization or order of any
court, governmental agency or body or financial institution is required
in connection with the consummation of the transactions contemplated by
this Agreement, the Indenture, the Supplemental Indenture and the
Securities.
(x) Material Transactions. Subsequent to the respective dates
as of which information is given in the Registration Statement, any
Preliminary Prospectus and the Prospectus and prior to the date hereof,
neither the Company nor any of its subsidiaries has incurred or will
have incurred any liabilities or obligations for borrowed money, direct
or contingent, or entered into any transactions not in the ordinary
course of business which would have a material adverse effect on the
condition (financial or other), results of operations, assets, business
or prospects of the Company and its subsidiaries taken as a whole.
(xi) Property. The Company and each of its subsidiaries owns,
or has valid rights to use in the manner currently used or proposed to
be used, all items of real and personal property which are material and
which they reasonably believe are necessary to the business of the
Company and its subsidiaries taken as a whole (including without
limitation all U-Haul Centers, manufacturing facilities, assembly
facilities and service centers described or referred to in the
Prospectus), free and clear of all liens, encumbrances and claims which
may materially interfere with the use thereof or have a material
adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole.
(xii) Legal Proceedings; Contracts. Except as described in the
Prospectus, there is no litigation or governmental proceeding to which
the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is subject or which
is pending or, to the knowledge of the Company, contemplated against
the Company or any of its subsidiaries which might result in any
material adverse change in the condition (financial or other), results
of operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole; and there are no contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been filed as exhibits to the Registration Statement.
(xiii) Regulations. Neither the Company nor any of its
subsidiaries is in violation of any law, ordinance, governmental rule
or regulation or court decree to which it may be subject which might
have a material adverse effect on the condition (financial or other),
results of operations, assets, business or prospects of the Company and
its subsidiaries taken as a whole.
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(xiv) Licenses. All licenses, permits or registrations
required for the business of the Company and each of its subsidiaries,
as presently conducted and proposed to be conducted, under any Federal,
state or local laws, regulations or ordinances (including those related
to consumer protection, protection of the environment and regulation of
franchising) have been obtained or made, other than any such licenses,
permits or registrations, the failure of which to obtain or make,
either individually or in the aggregate, would not have a material
adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole, and each of the Company and its
subsidiaries is in compliance with all such licenses, permits or
registrations.
(xv) Environmental. Except as disclosed in the Prospectus, the
Company and its subsidiaries comply in all material respects with all
Environmental Laws (as defined below), except to the extent that
failure to comply with such Environmental Laws could not have a
material adverse effect on the condition (financial or other), results
of operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole. Except as disclosed in the Prospectus,
neither the Company nor any of its subsidiaries is the subject of any
pending or threatened federal, state or local investigation evaluating
whether any remedial action by the Company or any of its subsidiaries
is needed to respond to a release of any Hazardous Materials (as
defined below) into the environment, resulting from the Company's or
any of its subsidiaries' business properties or assets or is in
contravention of any Environmental Law that could have a material
adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole. Except as disclosed in the Prospectus,
neither the Company nor any of its subsidiaries has received any notice
or claim, nor are there pending or threatened lawsuits against them,
with respect to violations of any Environmental Law or in connection
with any release of any Hazardous Material into the environment that,
in the aggregate, if the subject of any unfavorable decision, ruling or
finding, could have a material adverse effect on the condition
(financial or other), results of operations, assets, business or
prospects of the Company and its subsidiaries taken as a whole. As used
herein, "Environmental Laws" means any federal, state or local law,
regulation, permit, rule or order of any governmental authority,
administrative body or court applicable to the Company's or any of its
subsidiaries' business operations or the ownership or possession of any
of their properties or assets relating to environmental matters, and
"Hazardous Materials" means those substances that are regulated by or
form the basis of liability under any Environmental Laws.
(xvi) Registration Rights. There are no contracts, agreements
or understandings between the Company and any person granting such
person the right to require the Company to include any securities owned
or to be owned by such person among the securities registered pursuant
to the Registration Statement, or, except as described in the
Prospectus or in Schedule IV to this Agreement, to require the Company
to file any other registration under the 1933 Act (other than a
registration statement on Form S-8) with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in any securities being registered
pursuant to any other registration statement filed by the Company under
the 1933 Act.
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(xvii) Certain Relationships. No relationship, direct or
indirect, exists between or among the Company, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company, on the other hand, which is required to be described in the
Prospectus and which is not so described.
(xviii) Investment Company Act. The Company is not required to
be registered, and is not regulated, as an "investment company" as such
term is defined under the Investment Company Act of 1940, as amended,
and the rules and regulations thereunder (collectively, the "Investment
Company Act").
(b) Any certificate signed by any director or officer of the Company or
any of its Subsidiaries and delivered to any Underwriter or to counsel for the
Underwriters in connection with any offering of Securities shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby on the date of such certificate.
SECTION 2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto,
the principal amount of the Securities set forth opposite such Underwriter's
name in Schedule II hereto, except that, if Schedule I hereto provides for the
sale of Securities pursuant to delayed delivery arrangements, the respective
principal amounts of Securities to be purchased by the Underwriters hereunder
shall be as set forth in Schedule II. Securities to be purchased by the
Underwriters are herein sometimes called the "Underwriters' Securities."
SECTION 3. Delivery and Payment.
Delivery of and payment for the Underwriters' Securities shall be made
on the date and at the time specified in Schedule I hereto (or such later date
not later than five business days after such specified date as the
Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
12 hereof (such date and time of delivery and payment for the Underwriters'
Securities being herein called the "Closing Date"). The Underwriters and the
Company have determined that it is not feasible to close at an earlier date.
Delivery of the Underwriters' Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company in same day funds, in which case the Company
will reimburse the Representatives for their cost of obtaining such funds.
Delivery of the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
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The Company agrees to have the Underwriters' Securities available for
inspection by the Representatives in New York, New York, not later than 1:00 PM
on the business day prior to the Closing Date.
SECTION 4. Covenants of the Company.
The Company covenants with the Representatives and with each
Underwriter participating in the offering of Securities, as follows:
(a) Notice of Certain Events. The Company will notify the
Representatives immediately (i) of the time when the Registration Statement or
any amendment thereto becomes effective or promptly after the filing of any
supplement or amendment to the Preliminary Prospectus or the Prospectus (other
than any Incorporated Document or any amendment or supplement relating to an
offering of securities other than the Securities); (ii) of the transmittal to
the SEC for filing of any supplement to the Preliminary Prospectus or the
Prospectus relating to the Securities or any document to be filed pursuant to
the 1934 Act which will be incorporated by reference in the Prospectus; (iii) of
the receipt of any comments from the SEC with respect to the Registration
Statement, the Preliminary Prospectus or the Prospectus; (iv) of any request by
the SEC for any amendment to the Registration Statement or any amendment or
supplement to the Preliminary Prospectus or the Prospectus relating to the
Securities or for additional information; (v) of the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; (vi) of any downgrading in the
rating accorded the Securities or any other debt securities of the Company, or
any proposal to downgrade the rating of the Securities or any other debt
securities of the Company, by any "nationally recognized statistical rating
organization," as that term is defined by the SEC for purposes of Rule 436(g)(2)
of the 1933 Act Regulations, or of any public announcement that any such
organization has under surveillance or review, with possible negative
implications, its rating of the Securities or any of the Company's debt
securities promptly after the Company learns of such downgrading, proposal to
downgrade or public announcement; and (vii) of the receipt by the Company of any
notification with respect to the suspension of qualification of the Securities
for sale in any jurisdiction or the initiation or threatening of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order or notice of suspension of qualification and, if
issued, to obtain the lifting thereof as soon as possible.
(b) Notice of Certain Proposed Filings. The Company will give the
Representatives advance notice of its intention to file or prepare any
additional registration statement with respect to any amendment to the
Registration Statement or any amendment or supplement to the Preliminary
Prospectus or the Prospectus relating to the Securities, whether by the filing
of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and will
furnish the Representatives with copies of any such amendment or supplement or
other documents proposed to be filed or used a reasonable time in advance of
such proposed filing or use, as the case may be, and will not file any such
amendment or supplement or other documents in a form to which the
Representatives or counsel for the Underwriters shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to each Representative as many signed and conformed copies
of the Registration
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Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents filed
pursuant to the 1934 Act and incorporated by reference in the Preliminary
Prospectus and the Prospectus) as such Representative may reasonably request.
The Company will furnish to each Representative as many copies of the
Preliminary Prospectus and the Prospectus (as amended or supplemented) as such
Representative shall reasonably request so long as such Representative is
required to deliver a Preliminary Prospectus or Prospectus in connection with
sales or solicitations of offers to purchase the Securities. The Registration
Statement, Preliminary Prospectus and Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the SEC pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(d) Filing of Amendments. The Company will file promptly with the SEC
any amendment to the Registration Statement or the Prospectus or any supplement
to the Prospectus that may be required by the 1933 Act or in the reasonable
judgment of the Company or the Representatives or that may be requested by the
SEC.
(e) Copies of Amendments. Prior to filing with the SEC any (i)
amendment to the Registration Statement or supplement to the Prospectus required
by the 1933 Act Regulations or (ii) Prospectus required pursuant to Rule 424
(other than any Incorporated Document or any amendment or supplement relating to
an offering of securities other than the Securities), and promptly after filing
with the SEC any Incorporated Document or any amendment to any Incorporated
Document, the Company will furnish a copy thereof to the Representatives and
counsel for the Underwriters.
(f) Copies of Public Reports and Required Filings. For a period
expiring on the last date on which any Note sold pursuant to this Agreement is
outstanding, the Company will furnish to the Representatives copies of all
materials furnished by the Company to its security holders and all public
reports and all reports and financial statements furnished by the Company to the
principal national securities exchanges upon which the securities of the Company
may be listed pursuant to requirements of or agreements with such exchanges or
to the SEC pursuant to the 1934 Act or the rules and regulations of the SEC
under 1934 Act (the "1934 Act Regulations").
(g) Revisions of Prospectus - Material Changes. Except as otherwise
provided in this subsection, if at any time during the term of this Agreement
any event shall occur or condition exist as a result of which it is necessary,
in the reasonable opinion of counsel for the Underwriters or counsel for the
Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given by telephone,
and confirmed in writing, to the Representatives and the Company will (i)
subject to the first sentence of Section 4(a) hereof promptly amend or
supplement the Registration Statement and the Prospectus, whether by filing
documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and
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<PAGE> 13
Prospectus comply with such requirements and (ii) furnish to the
Representatives, without charge, such number of prices of such amendment or
supplement as the Representatives may reasonably request.
(h) Earnings Statements. The Company will make generally available to
its security holders and the Representatives as soon as practicable, but not
later than 18 months after the date of each acceptance by the Company of an
offer to purchase Securities, an earnings statement of the Company and its
subsidiaries conforming with the requirements of Section 11(a) of the 1933 Act
(including, at the option of the Company, Rule 158 of the 1933 Act), covering
each twelve month period commencing after the later of (i) the effective date of
the Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of such acceptance and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the SEC prior to the date of such
acceptance.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
with such Representatives, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Representatives may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Securities; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the Securities have
been qualified as above provided.
(j) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the 1934 Act within the prescribed time periods therefor.
(k) Restriction on Sale of Securities. Until the Closing Date, the
Company will not (i) without the consent of the Representatives, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or announce
the offering of, any debt securities issued or guaranteed by the Company (other
than the Securities) that mature more than one year after the Closing Date and
that are publicly offered to investors or offered to investors in reliance upon
Rule 144A under the 1933 Act, or (ii) without notifying the Representatives,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities issued or
guaranteed by the Company (other than the securities described in the preceding
clause (i)); provided, however, that the foregoing covenant shall not apply to
(A) any medium-term note program of the Company and (B) any sale and leaseback
financing with respect to rental trucks, trailers and related equipment used by
the Company in its operations.
(l) Investment Company Act. The Company will take such steps as shall
be necessary to ensure that neither the Company nor any subsidiary shall become
an "investment company" within the meaning of such term under the Investment
Company Act.
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SECTION 5. Conditions of Underwriters' Obligations.
The obligations of any Underwriter to purchase the Underwriters'
Securities on the Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company herein and to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Stop Order and Effectiveness. The Prospectus as amended or
supplemented with respect to the Securities shall have been filed with the SEC
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the 1933 Act Regulations and in accordance with Section 4(a) hereof;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof nor any order directed to any document incorporated by reference in
any Prospectus shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the SEC; and any request of the SEC for
inclusion of additional information in the Registration Statement or any
Prospectus or otherwise shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. No order suspending the sale of the
Securities in any jurisdiction designated by the Underwriters pursuant to
Section 4(i) hereof shall have been issued, and no proceeding for that purpose
shall have been initiated or threatened.
(b) Statements Within Registration Statement or Prospectus. No
Underwriter shall have discovered and disclosed to the Company that the
Registration Statement or any Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of counsel for the
Underwriters, is material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(c) Corporate Proceedings; Legal Matters. All corporate proceedings and
other legal matters incident to the authorization, form and validity of this
Agreement, the Indenture, the Supplemental Indenture, the Securities, the
Registration Statement and each Prospectus, and all other legal matters relating
to this Agreement, and the transactions contemplated hereby and thereby, shall
be satisfactory in all material respects to counsel for the Underwriters, and
the Company shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
(d) Legal Opinions. On the Closing Date, the Underwriters shall have
received the following legal opinions, dated the Closing Date and in form and
substance satisfactory to the Underwriters:
(1) Opinion of Company Counsel. The opinion, addressed to the
Representatives, of Snell & Wilmer L.L.P., counsel for the Company, to
the effect that:
(i) each of the Company, Oxford Life Insurance
Company, an Arizona corporation and Republic Western Insurance
Company, an Arizona corporation, has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Nevada or the State of Arizona,
as the case may be, with full corporate power and authority to
own its properties and
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<PAGE> 15
conduct its business as described in the Prospectus and to
carry out the transactions contemplated hereunder, and each of
the Nevada Companies (as hereinafter defined) is duly
qualified to do business as a foreign corporation and is in
good standing under the laws of the State of Arizona;
(ii) the Company's authorized, issued and outstanding
capital stock is as set forth in the Prospectus; the
Securities conform to the description thereof contained in the
Prospectus;
(iii) each of the Indenture and the Supplemental
Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the 1939 Act,
and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
except that (a) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally, (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court
before which any proceedings therefor may be brought, and (c)
the enforceability hereof is further subject to the
qualification that certain waivers, procedures, remedies, and
other provisions hereof may be unenforceable under, or limited
by, the law of the State of Arizona; however, such limitations
do not, in our opinion, substantially prevent the practical
realization of the benefits intended hereof; and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of this
Agreement, the Indenture and the Supplemental Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters' Securities, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and the Supplemental
Indenture, except that (x) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally, (y) the remedy of specific
performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of
the court before which any proceedings therefor may be
brought, and (z) the enforceability hereof is further subject
to the qualification that certain waivers, procedures,
remedies, and other provisions hereof may be unenforceable
under, or limited by, the law of the State of Arizona;
however, such limitations do not, in our opinion,
substantially prevent the practical realization of the
benefits intended hereof;
(iv) to the best knowledge of such counsel, there is
no franchise, contract or other document of a character
required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not
described or filed as required; and the statements included or
incorporated in the Prospectus describing any legal
proceedings or material contracts or agreements relating to
the Company fairly summarize such matters;
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<PAGE> 16
(v) the Registration Statement has become effective
under the 1933 Act; any required filing of the basic
Prospectus, any Preliminary Prospectus and the Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Prospectus (other than with respect to financial
statements and other financial and statistical information, as
to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the 1933 Act, the 1934 Act and the 1939 Act and the
applicable rules and regulations thereunder; and such counsel
has no reason to believe that at the Effective Date the
Registration Statement (other than with respect to financial
statements and other financial and statistical information, as
to which such counsel need express no opinion) contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus (other than with respect to financial statements
and other financial and statistical information, as to which
such counsel need express no opinion) at its date or at the
Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated herein, except
such as have been obtained under the 1933 Act and such as may
be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(viii) neither the execution and delivery of the
Indenture or the Supplemental Indenture or the issuance and
sale of the Securities nor the consummation of any other of
the transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof, will (a) conflict
with the articles or certificate of incorporation or by-laws
of the Company or any of its subsidiaries or (b) result in a
breach or violation of or constitute a default under any law
or any bond, debenture, note or any other evidence of
indebtedness of any indenture, mortgage, deed of trust or
other material agreement or instrument known to such counsel
and to which the Company or any of its subsidiaries is a party
or bound or violation of any judgment, order or decree known
to such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries, except (with
regard to clause (b)) for such
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<PAGE> 17
breaches, violations or defaults as would not have a material
adverse effect on the condition (financial or other), results
of operations, assets, business or prospects of the Company
and its subsidiaries taken as a whole;
(ix) each of the Indenture, the Supplemental
Indenture and the Securities conform in all material respects
to the descriptions thereof contained in the Prospectus;
(x) an Arizona court would give effect to the choice
of New York law in the Indenture and the Supplemental
Indenture; and
(xi) the Company is not, and is not directly or
indirectly controlled by, or acting on behalf of any person or
entity which is, an "investment company" within the meaning of
the Investment Company Act.
In rendering such opinion, such counsel may rely, (A)
as to matters involving the application of laws of any
jurisdiction other than the State of Arizona, the State of
Nevada or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel
of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters, (B) as to
matters involving the application of the laws of the State of
Nevada, upon the opinion delivered pursuant to Section 5(d)(2)
hereof, and (C) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company
and public officials. Such counsel may assume, for the
purposes of such opinion and without investigation, that the
substantive laws of the State of New York do not materially
differ from the substantive laws of the State of Arizona, and
such counsel need express no opinion as to the laws of New
York or their applicability to the matters covered by such
opinion. References to the Prospectus in this Section 5(d)(1)
include any supplements thereto at the Closing Date.
(2) Opinion of Company's Nevada Counsel. The opinion,
addressed to Snell & Wilmer L.L.P. and the Representatives, of Lionel,
Sawyer & Collins, counsel for the Company, to the effect that:
(i) each of the Company, Amerco Real Estate Company,
a Nevada corporation, and U-Haul International, Inc., a Nevada
corporation (collectively, the "Nevada Companies"), has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Nevada, with full
corporate power and authority to own its properties and
conduct its business as described in the Prospectus and to
carry out the transactions contemplated hereunder and in the
Prospectus;
(ii) each of the Indenture and the Supplemental
Indenture has been duly authorized, executed and delivered by
the Company and (assuming, in reliance upon the opinion
delivered pursuant to Section 5(d)(4) hereof, that each of the
Indenture and the Supplemental Indenture is a legal, valid and
binding instrument enforceable against all parties thereto
under the laws of New York) constitutes a
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<PAGE> 18
legal, valid and binding instrument enforceable against the
Company in accordance with its terms, except that (a) the
enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court
before which any proceedings therefor may be brought; and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of this
Agreement, the Indenture and the Supplemental Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters' Securities, will
constitute legal, valid and binding obligations of the Company
(assuming, in reliance upon the opinion delivered pursuant to
Section 5(d)(4) hereof, that each of the Securities is a
legal, valid and binding instrument enforceable against all
parties thereto under the laws of New York), except that (x)
the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (y) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court
before which any proceedings therefor may be brought;
(iii) no consent, approval, authorization or order of
any court or governmental agency or body of the State of
Nevada is required for the consummation of the transactions
contemplated herein, except such as may be required under the
blue sky laws of the State of Nevada in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such
opinion) as have been obtained;
(iv) neither the execution and delivery of the
Indenture or the Supplemental Indenture or the issuance and
sale of the Securities nor the consummation of any other of
the transactions herein or therein contemplated nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of or constitute a default
under any law or the articles or certificate of incorporation
or by-laws of the Company or any of the Nevada Companies or
any bond, debenture, note or any other evidence of
indebtedness of any indenture, mortgage, deed of trust or
other material agreement or instrument known to such counsel
and to which the Company or any of the Nevada Companies is a
party or bound or any judgment, order or decree known to such
counsel to be applicable to the Company or any of the Nevada
Companies of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of the Nevada Companies; and
(v) A Nevada court would give effect to the choice of
New York law in the Indenture and the Supplemental Indenture.
As used therein, the phrase "known to counsel" shall
mean only such actual knowledge as such counsel has obtained
from consultation with attorneys presently
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<PAGE> 19
in its firm from whom it has determined are likely, in the
ordinary course of their respective duties, to have knowledge
of the matters covered by such opinions. Except as expressly
provided otherwise therein, it has not conducted any other
investigation or review in connection with the opinions
rendered therein, including without limitation a review of any
of its files or the files of the Nevada Companies.
Such counsel may further assume information as to
certain contacts between the jurisdictions of New York and the
transactions contemplated by the Securities, the Indenture and
the Supplemental Indenture, including the following:
(a) substantial negotiations relating to
such transactions have taken place in the State of
New York,
(b) the Company is executing and delivering
the Securities, the Indenture and the Supplemental
Indenture in New York in connection with the
restructuring of certain of its indebtedness and for
certain other lawful and authorized ends,
(c) the Company's financial advisor, as well
as the external counsel representing the Underwriters
in connection with such transactions, have offices in
the State of New York, and negotiations in connection
with such transactions have taken place in certain of
their offices, including such offices in New York,
and
(d) the Underwriters are located or have
offices in the State of New York.
In rendering such opinion, such counsel may rely, (A)
as to matters involving the application of laws of any
jurisdiction other than the State of Nevada or the United
States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel
for the Underwriters, (B) as to matters involving the laws of
the State of Arizona, upon the opinion delivered pursuant to
Section 5(d)(1) hereof, (C) as to matters involving the laws
of the State of New York, upon the opinion delivered pursuant
to Section 5(d)(4) hereof, and (D) as to matters of fact, to
the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to
the Prospectus in this Section 5(d)(2) include any supplements
thereto at the Closing Date.
(3) Opinion of General Counsel to the Company. The opinion,
addressed to the Representatives, of Gary V. Klinefelter, Secretary and
General Counsel of the Company to the effect that:
(i) each of the Company and its subsidiaries has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in
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<PAGE> 20
good standing under the laws of each jurisdiction which
requires such qualification wherein it owns or leases material
properties or conducts material business;
(ii) all the outstanding shares of capital stock of
each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Prospectus, all
outstanding shares of capital stock of the subsidiaries are
owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest
or any other security interests, claims, liens or
encumbrances;
(iii) there is no pending or threatened action, suit
or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or
any of its subsidiaries of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit, which is not described or filed
as required; and the statements included or incorporated in
the Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
(iv) neither the execution and delivery of the
Indenture or the Supplemental Indenture or the issuance and
sale of the Securities nor the consummation of any other of
the transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof, will conflict
with, result in a breach or violation of or constitute a
default under any law or the articles or certificate of
incorporation or by-laws of the Company or any of its
subsidiaries or any bond, debenture, note or any other
evidence of indebtedness of any indenture, mortgage, deed of
trust or other material agreement or instrument and to which
the Company or any of its subsidiaries is a party or bound or
any judgment, order or decree to be applicable to the Company
or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(v) to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose
have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the 1933 Act, the 1934 Act and the
1939 Act and the applicable rules and regulations thereunder;
and such counsel has no reason to believe that at the
Effective Date the Registration Statement (other than the
financial statements and other financial and statistical
information contained therein, as to which such
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<PAGE> 21
counsel need express no opinion) contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
(other than the financial statements and other financial and
statistical information contained therein, as to which such
counsel need express no opinion) at its date or at the Closing
Date included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(4) Opinion of Counsel to the Underwriters. The opinion,
addressed to the Underwriters, of Milbank, Tweed, Hadley & McCloy LLP,
counsel for the Underwriters, with respect to the issuance and sale of
the Securities, the Indenture, the Supplemental Indenture, the
Registration Statement, the Prospectus (together with any supplement
thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(e) Officer's Certificate. On the Closing Date, the Underwriters shall
have received a certificate of the Chairman of the Board or the President and
the principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Prospectus, any supplement to the Prospectus and
this Agreement and that: (i) since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement thereto),
there has not been any material adverse change in the condition (financial or
other) results of operations, assets, business or prospects of the Company and
its subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto); (ii) the other representations
and warranties of the Company contained in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of the Closing
Date and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the Closing
Date; (iii) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date of such certificate; (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the SEC; and (v) no order suspending the
sale of the Securities in any jurisdiction designated by the Underwriters has
been issued and, to their knowledge, no proceedings for that purpose have been
initiated or threatened.
(f) Comfort Letter. On the date hereof and the Closing Date, the
Company shall furnish customary comfort letters addressed to the
Representatives, dated the date hereof and the Closing Date, in form and
substance satisfactory to the Representatives, from PricewaterhouseCoopers LLP,
independent public accountants, containing the statements and information of the
type ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information relating
to the Company contained or incorporated by reference into the Registration
Statement and the Prospectus.
(g) Changes Affecting the Securities. Subsequent to the date hereof or,
if earlier, dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change in the capital
stock or long-term debt of the Company and its subsidiaries, taken as a whole,
or (ii) any change in or affecting the condition (financial or other), results
of operations, assets, business or prospects of the Company and its
subsidiaries, taken as a whole, which in any case
18
<PAGE> 22
referred to in clause (i) or (ii) above, in the judgment of the Representatives,
materially impairs the investment quality of the Securities.
(h) Credit Downgrade. Prior to the Closing Date, there shall not have
been any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the 1933 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.
(i) Other Documents. Prior to the Closing Date, counsel to the
Representatives shall have been furnished with such documents and opinions as
such counsel may reasonably require for the purpose of enabling such counsel to
pass upon the issuance and sale of Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Securities as herein contemplated shall be satisfactory
in form and substance to the Representatives and to counsel to the Underwriters.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section 4(h) hereof, the provisions concerning payment of expenses under Section
9 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8
hereof, the provisions concerning the representations, warranties and agreements
to survive delivery pursuant to Section 10 hereof, the provisions relating to
governing law set forth in Section 14 hereof and the provisions set forth under
"Parties" of Section 15 hereof shall remain in effect.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Milbank, Tweed, Hadley & McCloy LLP at 1 Chase
Manhattan Plaza, New York, New York 10005, on the Closing Date.
SECTION 6. Reimbursement of Underwriters' Expenses.
If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied, because of any termination pursuant to
Section 11 hereof or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities, including in connection with this Agreement and with any
investigation or preparation made by them in respect of the
19
<PAGE> 23
marketing of the Securities or in contemplation of the performance by them of
their obligations hereunder.
SECTION 7. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage or
expense whatsoever, joint or several, as incurred, arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or the omission
or alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
the Preliminary Prospectus (or any amendment or supplement thereto) or
the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, unless such untrue statement or omission or
such alleged untrue statement or omission was made in reliance upon and
in conformity with written information furnished to the Company
through, by or on behalf of any of the Underwriters expressly for use
in the Registration Statement, the Preliminary Prospectus or the
Prospectus;
(ii) against any and all loss, liability, claim, damage or
expense whatsoever, joint or several, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever arising out of or based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, joint or
several, as incurred (including the fees and disbursements of counsel
chosen by the Representatives), reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever arising out of or based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
including the Rule 430A Information and the Rule 434 Information deemed to be a
part thereof, if applicable, or the Prospectus or in any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representative
specifically for inclusion
20
<PAGE> 24
therein (which information shall be determined as set forth in Section 7(b)
hereof); and provided, further, that as to any Preliminary Prospectus or
supplement thereto this indemnity agreement shall not inure to the benefit of
any Underwriter, the directors, officers, employees and Underwriters of each
Underwriter or any person controlling that Underwriter on account of any loss,
claim, damage, liability or action arising from the sale of Securities to any
person by that Underwriter if that Underwriter failed to send or give a copy of
the Prospectus, as the same may be amended or supplemented, to that person
within the time required by the 1933 Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such Preliminary Prospectus or supplement thereto was corrected
in that Prospectus, unless such failure resulted from non-compliance by the
Company with Section 4(c) hereof. For purposes of the second proviso to the
immediately preceding sentence, the term Prospectus shall not be deemed to
include the documents incorporated by reference therein, and no Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in a Preliminary Prospectus or supplement thereto or
the Prospectus to any person other than a person to whom such Underwriter has
delivered such incorporated documents in response to a written request therefor.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any controlling person of
that Underwriter.
(b) Indemnification of Company. Each Underwriter, severally and not
jointly, agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage or
expense described in the indemnity contained in Section 7(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, the Preliminary
Prospectus (or any amendment or supplement thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company through, by or on behalf of such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), the Preliminary Prospectus (or any amendment or supplement thereto) or
the Prospectus (or any amendment or supplement thereto). The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to the Company or any such director, officer or controlling person.
(c) General. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
21
<PAGE> 25
SECTION 8. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 7 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Underwriters, as incurred,
in such proportions so that each Underwriter is responsible for that portion
represented by the percentage that the total commission or underwriting discount
received by such Underwriter in respect of the offering of Securities from which
such loss, liability, claim, damage and expense arise, to the date of such loss,
liability, claim, damage and expense bears to the total sales price of such
Securities from the sale to or through such Underwriter, and the Company is
responsible for the balance; provided, however, that (i) in no case shall an
Underwriter be responsible for any amount in excess of the commissions and
underwriting discounts received by such Underwriter in connection with the
Securities from which such losses, liabilities, claims, damages and expenses
arise and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company. Each
Underwriter's obligation to contribute as provided in this Section 8 are several
and not joint.
SECTION 9. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement
and all amendments thereto, the Preliminary Prospectus and the
Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery of the
Securities, including any fees and expenses relating to the use of
book-entry Securities;
(d) The fees and disbursements of the Company's accountants
and counsel, of the Trustees and their counsel, and of any transfer
agent or registrar;
(e) The qualification of the Securities under state securities
laws in accordance with the provisions of Section 4(i) hereof,
including filing fees and the reasonable fees and disbursements of
counsel for the Underwriter in connection therewith
22
<PAGE> 26
and in connection with the preparation and printing of any Blue Sky
Survey and any Legal Investment Survey;
(f) The printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement, of the Preliminary Prospectus, of the Prospectus and any
amendments or supplements thereto, and any documents incorporated by
reference and the delivery by the Underwriters of the Prospectus and
any amendments or supplements thereto in connection with solicitations
or confirmations of sales of the Securities;
(g) The preparation, printing, reproducing and delivery to the
Underwriters of copies of the Indenture, the Supplemental Indenture and
all amendments thereto;
(h) Any fees charged by rating agencies for the rating of the
Securities;
(i) The fees and expenses incurred in connection with the
listing of the Securities on any securities exchange;
(j) The fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the
Underwriters incurred with the approval of the Company;
(l) The cost of providing any CUSIP or other identification
numbers for the Securities; and
(m) The fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Securities.
SECTION 10. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or any
controlling person of the Underwriter, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Securities. The
provisions of Section 7, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
SECTION 11. Termination.
(a) Termination; General.
Any Representative may terminate this Agreement hereunder immediately
upon notice to the Company, at any time prior to the Closing Date (i) if there
has been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change, or any
development involving a prospective material adverse change, in the condition
(financial or other) or results of operations, assets, business or prospects of
the Company and its subsidiaries taken as a whole, whether or not arising in the
ordinary course of
23
<PAGE> 27
business, or (ii) if there shall have occurred any material adverse change in
the financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis the effect of
which is such as to make it, in the judgment of such Representative,
impracticable to market the Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been
suspended by the SEC, a national securities exchange or the NASDAQ National
Market System, or if trading generally on either the American Stock Exchange or
the New York Stock Exchange or the NASDAQ National Market System shall have been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said
exchanges, the NASDAQ National Market System or by order of the SEC or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities or if a banking moratorium shall have
been declared by the Federal or New York authorities, or (iv) if there is any
downgrading in the rating accorded the debt securities of the Company, including
the Securities, by any "nationally recognized statistical rating organization"
as that term is defined by the SEC for purposes of Rule 436(g)(2) under the 1933
Act or if any such rating organization shall have publicly announced that it has
placed any of such debt securities on what is commonly termed a "watch list" for
possible downgrading, or (v) if there shall have come to such Representative's
attention any facts that would cause such Representative to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of
Securities, included an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light of
the circumstances existing at the time of such delivery, not misleading.
(b) Liabilities. In the event of any such termination pursuant to this
Section 11, neither party will have any liability to the other party hereto,
except that the covenants set forth in Section 4 hereof, the provisions of
Section 9 hereof, the indemnity and contribution agreements set forth in
Sections 7 and 8 hereof, and the provisions of Sections 10, 14 and 15 hereof
shall remain in effect.
SECTION 12. Defaulting Underwriters.
If, on the Closing Date, any Underwriter defaults in the performance of
its obligations under this Agreement, the non-defaulting Underwriter may make
arrangements for the purchase of the Securities which such defaulting
Underwriter agreed but failed to purchase by other persons satisfactory to the
Company and the non-defaulting Underwriter, but if no such arrangements are made
within 24 hours after such default, this Agreement shall terminate without
liability on the part of the non-defaulting Underwriter or the Company, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Sections 6 and 9 hereof and except that the provisions of
Sections 7 and 8 hereof shall not terminate and shall remain in effect. As used
in this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context otherwise requires, any party not listed in
Schedule II hereof that, pursuant to this Section 12, purchases Securities which
a defaulting Underwriter agreed but failed to purchase.
24
<PAGE> 28
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
transmitted by any standard form of telecommunication, and any such notice shall
be effective when received at the address specified below. Notice to the Company
shall be directed to AMERCO, 1325 Airmotive Way, Suite 100, Reno, Nevada
89502-3239, Attention: Gary Horton, facsimile number: (775) 688-6338, with a
copy to Snell & Wilmer L.L.P., One Arizona Center, Phoenix, Arizona 85004-0001,
Attention: Michael Donahey, facsimile number (602) 382-6070; notice to the
Representatives shall be directed to the addresses specified in Schedule I
hereto; or notice shall be directed to such other address as such party may
designate from time to time by notice duly given in accordance with the terms of
this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State without
giving effect to principles of conflicts of law. Any suit, action or proceeding
brought by the Company against the Underwriters in connection with or arising
under this Agreement shall be brought solely in the state or federal court of
appropriate jurisdiction located in the Borough of Manhattan, The City of New
York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Representatives and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 7 and 8 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. Effect of Headings.
The Article and Section heading herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 17. Counterparts.
This Agreement may be executed by one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original, and
all such respective counterparts shall together constitute one and the same
instrument.
25
<PAGE> 29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
among the several Underwriters and the Company in accordance with its terms.
Very truly yours,
AMERCO
By: /s/ Gary V. Klinefelter
-------------------------
Name: Gary V. Klinefelter
Title: Secretary and
General Counsel
The forgoing Agreement is hereby confirmed and accepted as of the date specified
in Schedule I hereto.
NATIONSBANC MONTGOMERY SECURITIES LLC
By: /s/ Lynn McConnell
------------------------
Name: Lynn McConnell
Title: Managing Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Mike Fusco
------------------------
Name: Mike Fusco
Title: Vice President
26
<PAGE> 30
Schedule I
Underwriting Agreement dated March 26, 1999
Registration Statement No.: 333-73357
Representatives: NationsBanc Montgomery Securities LLC
NationsBanc Corporate Center
NC 1007-06-07
100 North Tryon Street
Charlotte, North Carolina 28255-0065
Attention: Lynn T. McConnell
Fax: (704) 388-9939
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Michael Fusco
Fax: (212)-861-0783
Title, Purchase Price and Description of Securities:
Title: 7.20% Senior Notes due 2002
Principal amount: $150,000,000
Purchase price (include accrued interest or amortization, if any): 99.79%
Sinking fund provisions: None
Redemption provisions: At the Company's option, on at least 30 days'
notice, at the redemption price and on terms as
set forth in greater detail in the Supplemental
Indenture.
Other provisions: The Securities are subject to repurchase at the
option of the holders thereof in the event of a
change in control of the Company as set forth in
greater detail in the Supplemental Indenture.
Closing Date, Time and Location: April 5, 1999 at 10:00 A.M.
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, NY 10005
<PAGE> 31
Schedule II
Principal Amount
of Securities to
Underwriters be Purchased
NationsBanc Montgomery Securities LLC....................... $105,000,000
Morgan Stanley & Co. Incorporated........................... 45,000,000
------------
Total $150,000,000
============
2
<PAGE> 32
Schedule III
List of Significant Subsidiaries pursuant to Section 1(a)(i)
Amerco Real Estate Company
Oxford Life Insurance Company
Republic Western Insurance Company
U-Haul International, Inc.
3
<PAGE> 33
Schedule IV
List of Agreements to Register Securities
1. Share Repurchase and Registration Rights Agreement, dated as of March
1, 1992, among AMERCO, Paul F. Shoen and PAFRAN, INC.
2. Preferred Stock Purchase Agreement, dated August 30, 1996, between
AMERCO and Blue Ridge Investments, L.L.C.
3. Registration Rights Agreement, dated as of August 30, 1996, between
AMERCO and NationsBank Corporation.
4. Registration Rights Agreement, dated as of November 30, 1998 between
AMERCO and NationsBank, N.A.
4
<PAGE> 1
Exhibit 4.1
AMERCO, as Issuer
TO
The Bank of New York, as Trustee
--------------------------------
Senior Indenture
Dated as of April 1, 1999
--------------------------------
<PAGE> 2
AMERCO
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C>
Section 310(a)(1).................................... 609
(a)(2)....................................... 609
(a)(3)....................................... Not Applicable
(a)(4) ...................................... Not Applicable
(b).......................................... 608
610
Section 311(a)........................................ 613
(b)........................................... 613
Section 312(a)........................................ 701
702(a)
(b)........................................... 702(b)
(c)........................................... 702(c)
Section 313(a)........................................ 703(a)
(b)........................................... 703(a)
(c)........................................... 703(a)
(d)........................................... 703(b)
Section 314(a)........................................ 704
(a)(4)........................................ 101
(b)........................................... Not Applicable
(c)(1)........................................ 102
(c)(2)........................................ 102
(c)(3)........................................ Not Applicable
(d)........................................... Not Applicable
(e)........................................... 102
Section 315(a)........................................ 601
(b)........................................... 602
(c)........................................... 601
(d)........................................... 601
(e)........................................... 514
Section 316(a)........................................ 101
(a)(1)(A)..................................... 502
512
(a)(1)(B)..................................... 513
(a)(2)........................................ Not Applicable
(b)........................................... 508
(c)........................................... 104(c)
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C>
Section 317(a)(1)........................................ 503
(a)(2)........................................... 504
(b).............................................. 1003
Section 318(a)........................................... 107
</TABLE>
- -------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES..................................................................... 1
RECITALS OF THE COMPANY .................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.................................................... 1
Act .......................................................... 2
Affiliate...................................................... 2
Authenticating Agent........................................... 2
Board of Directors............................................. 2
Board Resolution............................................... 2
Book-Entry Security............................................ 2
Business Day................................................... 2
Capital Stock.................................................. 2
Commission..................................................... 2
Company........................................................ 3
Company Request................................................ 3
Consolidated Subsidiary........................................ 3
Corporate Trust Office......................................... 3
Corporation.................................................... 3
Debt........................................................... 3
Default........................................................ 3
Defaulted Interest............................................. 3
Depository..................................................... 3
Dollars........................................................ 3
Event of Default............................................... 3
Exchange Act................................................... 4
GAAP ......................................................... 4
Holder......................................................... 4
Indebtedness for Money Borrowed................................ 4
Indenture...................................................... 4
Interest....................................................... 4
Interest Payment Date.......................................... 4
Issue Date..................................................... 4
Maturity....................................................... 4
Officers' Certificate.......................................... 4
</TABLE>
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of the Indenture.
<PAGE> 5
<TABLE>
<S> <C>
Opinion of Counsel.............................................. 5
Original Issue Discount Security................................ 5
Outstanding..................................................... 5
Paying Agent.................................................... 6
Person.......................................................... 6
Place of Payment................................................ 6
Predecessor Security............................................ 6
Property........................................................ 6
Redemption Date................................................. 6
Redemption Price................................................ 6
Regular Record Date............................................. 6
Responsible Officer............................................. 6
Securities...................................................... 7
Security Register............................................... 7
Special Record Date............................................. 7
Stated Maturity................................................. 7
Subsidiary...................................................... 7
Trustee......................................................... 7
Trust Indenture Act............................................. 7
U.S. Government Obligations..................................... 7
Vice President.................................................. 8
Voting Stock.................................................... 8
Wholly Owned Consolidated Subsidiary............................ 8
SECTION 102. Compliance Certificates and Opinions............................ 8
SECTION 103. Form of Documents Delivered to Trustee.......................... 9
SECTION 104. Acts of Holders; Record Dates................................... 9
SECTION 105. Notices, Etc., to Trustee and Company........................... 10
SECTION 106. Notice to Holders; Waiver....................................... 11
SECTION 107. Conflict with Trust Indenture Act............................... 11
SECTION 108. Effect of Headings and Table of Contents........................ 11
SECTION 109. Successors and Assigns.......................................... 11
SECTION 110. Separability Clause............................................. 11
SECTION 111. Benefits of Indenture........................................... 12
SECTION 112. Governing Law................................................... 12
SECTION 113. Legal Holidays.................................................. 12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally................................................. 12
SECTION 202. Form of Face of Security........................................ 13
</TABLE>
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of the Indenture.
<PAGE> 6
<TABLE>
<S> <C>
SECTION 203. Form of Reverse of Security..................................... 15
SECTION 204. Form of Legend for Book-Entry Securities........................ 19
SECTION 205. Form of Trustee's Certificate of Authentication................. 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series............................ 20
SECTION 302. Denominations................................................... 23
SECTION 303. Execution, Authentication, Delivery and Dating.................. 23
SECTION 304. Temporary Securities............................................ 24
SECTION 305. Registration, Registration of Transfer and Exchange............. 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities................ 26
SECTION 307. Payment of Interest; Interest Rights Preserved.................. 27
SECTION 308. Persons Deemed Owners........................................... 28
SECTION 309. Cancellation.................................................... 29
SECTION 310. Computation of Interest......................................... 29
SECTION 311. Book-Entry System............................................... 29
SECTION 312. CUSIP Numbers................................................... 31
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture......................... 31
SECTION 402. Application of Trust Money...................................... 32
SECTION 403. Defeasance and Discharge of Securities of Any Series............ 33
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................... 34
SECTION 502. Acceleration of Maturity; Rescission and Annulment.............. 36
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. 38
SECTION 504. Trustee May File Proofs of Claim................................ 39
SECTION 505. Trustee May Enforce Claims Without Possession of Securities..... 39
SECTION 506. Application of Money Collected.................................. 39
SECTION 507. Limitation on Suits............................................. 40
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest........................................................ 40
SECTION 509. Restoration of Rights and Remedies.............................. 41
SECTION 510. Rights and Remedies Cumulative.................................. 41
SECTION 511. Delay or Omission Not Waiver.................................... 41
SECTION 512. Control by Holders.............................................. 41
SECTION 513. Waiver of Past Defaults......................................... 42
</TABLE>
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of the Indenture.
<PAGE> 7
<TABLE>
<S> <C>
SECTION 514. Undertaking for Costs........................................... 43
SECTION 515. Waiver of Stay or Extension Laws................................ 43
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities............................. 43
SECTION 602. Notice of Defaults.............................................. 43
SECTION 603. Certain Rights of Trustee....................................... 44
SECTION 604. Not Responsible for Recitals or Issuance of Securities.......... 45
SECTION 605. May Hold Securities............................................. 45
SECTION 606. Money Held in Trust............................................. 45
SECTION 607. Compensation and Reimbursement.................................. 45
SECTION 608. Disqualification; Conflicting Interests......................... 46
SECTION 609. Corporate Trustee Required; Eligibility......................... 46
SECTION 610. Resignation and Removal; Appointment of Successor............... 46
SECTION 611. Acceptance of Appointment by Successor.......................... 48
SECTION 612. Merger, Conversion, Consolidation or Succession to Business..... 49
SECTION 613. Preferential Collection of Claims Against Company............... 49
SECTION 614. Appointment of Authenticating Agent............................. 49
SECTION 615. Trustee's Application for Instructions.......................... 51
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders....... 52
SECTION 702. Preservation of Information; Communications to Holders.......... 52
SECTION 703. Reports by Trustee.............................................. 52
SECTION 704. Reports by Company.............................................. 53
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms............ 53
SECTION 802. Successor Substituted........................................... 54
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.............. 54
SECTION 902. Supplemental Indentures with Consent of Holders................. 55
SECTION 903. Execution of Supplemental Indentures............................ 57
SECTION 904. Effect of Supplemental Indentures............................... 57
SECTION 905. Conformity with Trust Indenture Act............................. 57
SECTION 906. Reference in Securities to Supplemental Indentures.............. 57
</TABLE>
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE> 8
<TABLE>
<S> <C>
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest..................... 57
SECTION 1002. Maintenance of Office or Agency................................ 58
SECTION 1003. Money for Securities Payments to Be Held in Trust.............. 58
SECTION 1004. Corporate Existence............................................ 59
SECTION 1005. Defeasance of Certain Obligations.............................. 59
SECTION 1006. Statement by Officers as to Default............................ 61
SECTION 1007. Waiver of Certain Covenants.................................... 61
SECTION 1008. Calculation of Original Issue Discounts........................ 62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article....................................... 62
SECTION 1102. Election to Redeem; Notice to Trustee.......................... 62
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.............. 62
SECTION 1104. Notice of Redemption........................................... 63
SECTION 1105. Deposit of Redemption Price.................................... 64
SECTION 1106. Securities Payable on Redemption Date.......................... 64
SECTION 1107. Securities Redeemed in Part.................................... 64
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article....................................... 65
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.......... 65
SECTION 1203. Redemption of Securities for Sinking Fund...................... 65
SIGNATURES AND SEALS ........................................................ 67
</TABLE>
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE> 9
SENIOR INDENTURE, dated as of April 1, 1999, between AMERCO, a corporation
duly organized and validly 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 The Bank of New York, a New York
banking corporation, having its principal corporate trust office in New York,
New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101.Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
<PAGE> 10
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified
in Section 204 evidencing all or part of a series of Securities, authenticated
and delivered to the Depository for such series or its nominee, and registered
in the name of such Depository or nominee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"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.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934 (the
"Exchange Act"), or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
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<PAGE> 11
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or a Assistant Secretary, and delivered to
the Trustee.
"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.
"Corporate Trust Office" means the office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be principally administered, which as of the date of this Indenture is the
address of the Trustee set forth in Section 105.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"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 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 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.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as Depository by the Company pursuant to
Section 301 which must be a clearing agency registered under the Exchange Act,
and if at any time there is more than one such Person, "Depository" shall mean
the Depository with respect to the Securities of that series.
"Dollars" means the lawful currency of the United States of America.
"Event of Default" has the meaning specified in Section 501.
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<PAGE> 12
"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.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"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.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Issue Date" means, with respect to any series of Securities, the
date of initial issuance of such series.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificates given pursuant to Section 1006 shall be the
principal executive, financial or accounting officer of the Company.
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<PAGE> 13
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities in accordance
with Section 401; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities for whose payment or redemption money or U.S.
Government Obligations in the necessary amount has been theretofore
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609) in trust for the holders of such
Securities in accordance with Section 403; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
Dollar equivalent, determined in the manner provided as contemplated by Section
301 on the Issue Date of such Security, of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent on the Issue Date
of such Security of the amount determined as provided in (i) above) of such
Security, and (iii) Securities
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<PAGE> 14
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which a Responsible Officer of the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Property" means any kind of property or asset, whether real,
personal or mixed, and whether tangible or intangible.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be
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<PAGE> 15
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"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.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt; provided that (except as
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<PAGE> 16
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"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. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the
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<PAGE> 18
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing (whether in its original or facsimile form) to or
with the Trustee at its office, 101 Barclay Street, Floor 21 West,
New York, New York, 10286 , Attention: Michele Russo, or at such
other address as furnished in writing to the Company by the Trustee,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the
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address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the Trust Indenture Act provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
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In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be effected or impaired
thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be
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certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert--FOR
PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE
CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS SECURITY WAS EQUAL TO ____% OF
ITS PRINCIPAL AMOUNT THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS
___% OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS __________, 199_[,] [AND] THE
YIELD TO MATURITY IS ___% [, THE METHOD USED TO DETERMINE THE YIELD IS ________
[AND] THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL
PERIOD OF __________, 19__ TO _______, 19_ IS __% OF THE PRINCIPAL AMOUNT OF
THIS SECURITY] [AND, FOR PURPOSES OF TREASURY REGULATIONS SECTION 1.1275-4 THE
COMPARABLE YIELD OF THIS SECURITY IS ___ AND THE PROJECTED PAYMENT SCHEDULE OF
THIS SECURITY IS ____].
AMERCO
-----------------------------------
CUSIP No. ____________
No. ___________ $________
AMERCO, a corporation duly organized and existing under the laws of
Nevada (herein called the "Company," which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to __________________________________ or registered assigns, the
principal sum of ______________________ Dollars on ____________________________
[if the Security is to bear interest prior to Maturity, insert--, and to pay
interest thereon from ___________ or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, on ________ and _______
(each "an Interest Payment Date"), commencing ___________, at the rate of _____%
per annum, until the principal hereof is paid or made available for payment [if
applicable, insert--, and (to the extent that the payment of such interest shall
be legally enforceable) at the rate of __% per annum on any overdue principal
and premium and on any overdue installment of interest]. The interest so
payable, and
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<PAGE> 22
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the
___________________________ or ____________________________(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 Security (or one or more Predecessor
Securities) 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 Securities of this series 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 Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of _____% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ______% per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert--any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in __________, 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 [if applicable,
insert--; provided, however, that at the option of the Company payment of
interest may be made by: (1) wire transfer on the date of payment in immediately
available federal funds or next day funds to an account specified by written
notice to the Trustee from any Holder of Securities; (2) any similar manner that
such Holder may designate in writing to the Trustee; or (3) by check mailed to
the address of the Holder].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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<PAGE> 23
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
Dated:
AMERCO
By:______________________________________
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under a senior Indenture, dated as of April 1, 1999, (herein called the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto 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 Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof[, limited in aggregate principal amount to $_________].
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable,
insert--(1) on ___________ in any year commencing with the year _____ and ending
with the year _____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [on
or after _________, 19__], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before ____________, ____%, and if
redeemed] during the 12-month period beginning _________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
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<PAGE> 24
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business as the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ___________ in any
year commencing with the year ____ and ending with the year ____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after ___________], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below: If redeemed during the 12-month period beginning ___________ of the
years indicated,
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
____________, redeem any Securities of this series as contemplated by [Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than ____% per annum.]
[The sinking fund for this series provides for the redemption on
______________ in each year beginning with the year ____ and ending with the
year ____ of
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<PAGE> 25
[not less than $_______ ("mandatory sinking fund") and not more than] $_______
aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made [in
the inverse order in which they become due].]
[If the Security is subject to redemption, insert--In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security, insert--If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to--insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, 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 Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority of aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Security.
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<PAGE> 26
No reference herein to the Indenture and no provision of this
Security or of the 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 Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security 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 Security 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 Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
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 Security 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 Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification Number:
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<PAGE> 27
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.
SECTION 204. Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of
the Indenture hereinafter referred to and is registered in the name
of a Depository or a nominee of a Depository or a successor
depository. This Security is not exchangeable for Securities
registered in the name of a Person other than the Depository or its
nominee except in the limited circumstances described in the
Indenture, and no transfer of this Security (other than transfer of
this Security 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 Indenture."
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
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<PAGE> 28
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York
As Trustee
Dated: _________________
By:_____________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. All Securities of
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of any Holder, for issuances of
additional Securities of such series.
The Securities may be issued in one or more series and each series
shall rank equally and pari passu with all other unsecured and unsubordinated
debt of the Company. There shall be established in or pursuant to a Board
Resolution and, subject to Section 303, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities (including CUSIP numbers) of the
series (which shall distinguish the Securities of the series from Securities of
any other series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the ranking of such Securities as senior securities;
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<PAGE> 29
(4) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(5) the date or dates on which the principal of the Securities of
the series is payable;
(6) the rate or rates at which the Securities of the series shall
bear interest, or the method or methods by which such rate or rates shall be
determined, if any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any interest payable on any Interest Payment Date;
(7) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable, where any Securities of
the series may be surrendered for registration or transfer, where any Securities
of the series may be surrendered for exchange, and where notices or demands to
or upon the Company in respect of the Securities of the series and this
Indenture may be delivered;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(9) the mandatory or optional redemption provisions applicable to
the Securities;
(10) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(11) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(12) the application, if any, of Section 403 to the Securities of
the series;
(13) the application, if any, of Section 1005 to the Securities of
the series;
(14) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the series
shall be payable if other than the currency of the United States of America and
the manner of determining the
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<PAGE> 30
equivalent thereof in the currency of the United States of America for purposes
of the definition of "Outstanding" in Section 101;
(15) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined;
(16) whether the Securities of the series shall be issued in whole
or in part in the form of one or more Book-Entry Securities and, in such case,
the Depository with respect to such Book-Entry Security or Securities and the
circumstances under which any such Book-Entry Security may be registered for
transfer or exchange, or authenticated and delivered, in the name of a Person
other than such Depository or its nominee, if other than as set forth in Section
305;
(17) if other than the principal of or any premium or interest on
any Securities of the series is to be payable, at the election of the Company or
a Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency, currencies
or currency units in which payment of the principal of and any premium and
interest on Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions upon which
such election is to be made;
(18) if other than the entire principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(19) any additional covenant with respect to the Securities, if not
otherwise set forth herein;
(20) any Event of Default with respect to the Securities of the
series, if not otherwise set forth herein; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the
22
<PAGE> 31
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the terms
of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal (whether in its original or
facsimile form) reproduced thereon attested by its Treasurer, one of its
Assistant Treasurers, its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form has
been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms have
been established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion
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<PAGE> 32
of Counsel, will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the
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<PAGE> 33
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute, and the Trustee shall authenticate and
deliver in exchange therefor, one or more definitive Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and tenor. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
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<PAGE> 34
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing, no Book-Entry Security shall be
registered for transfer or exchange, or authenticated and delivered, whether
pursuant to this Section, Sections 304, 306, 906 or 1107 or otherwise, in the
name of a Person other than the Depository for such Book-Entry Security or its
nominee until (i) the Depository with respect to a Book-Entry Security notifies
the Company that it is unwilling or unable to continue as Depository for such
Book-Entry Security or the Depository ceases to be a clearing agency registered
under the Exchange Act at a time when such Depository is required to be so
registered in order to act as Depository, (ii) the Company executes and delivers
to the Trustee a Company Order that such Book-Entry Security shall be so
transferable and exchangeable or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Securities of such series.
Upon the occurrence in respect of any Book-Entry Security of any series of any
one or more of the conditions specified in clauses (i), (ii) or (iii) of the
preceding sentence or such other conditions as may be specified as contemplated
by Section 301 for such series, such Book-Entry Security may be registered for
transfer or exchange for Securities registered in the names of, or authenticated
and delivered to, such Persons as the Depository with respect to such series
shall direct.
Except as provided in the preceding paragraph, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Book-Entry Security, whether pursuant to this Section,
Section 304, 306, 906 or 1107 or otherwise, shall also be a Book-Entry Security
and bear the legend specified in Section 204.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as provided in this
clause. Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall not be more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such series
at his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may pay any Defaulted Interest on the Securities of
any series in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
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Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Book-Entry
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by a Depository or impair, as between a
Depository and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depository as Holder of such Book-Entry Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in its
customary manner.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Book-Entry System.
The Securities 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 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 Securities represented by such Global Securities
registered in their names, will not receive or be entitled to receive physical
delivery of Securities in definitive form and shall not be considered the owners
or Holders thereof under the 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 Securities shall be shown on, and transfers thereof shall be
effected only through, records maintained by the Depository and its
participants.
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Notwithstanding any provisions of Section 305 hereof, no Security
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 Securities in definitive form and will
not be considered Holders of Securities 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, Securities in definitive form will be issued
to each Person that the Depository or successor depository identifies as the
beneficial owner of the related Securities. Upon such issuance, the Trustee is
required to register such Securities in the name of, and cause such Securities
to be delivered to, such Person or Persons (or nominees thereof). Such
Securities would be issued in fully registered form without coupons, in
denominations of $1,000 and integral multiples thereof.
The Depository shall be permitted to take any action permitted to be
taken by an owner or Holder of Securities 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 Securities registered in the name
of or held by the Depository or its nominee shall be made to the Depository or
its nominees, as the case may be, as the registered owner of the Global Security
representing such Securities. The Company and the Trustee shall treat the
Persons in whose name the Securities are registered as the Holders of such
Securities for the purpose of receiving payment of principal and interest on
such Securities 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 Securities 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 Securities shall trade in the Depository's Same-Day Funds
Settlement System until Maturity (or until they are subject to acceleration
pursuant to Article Five hereof), and secondary market trading activity in the
Securities may be required by the Depository to settle in immediately available
funds.
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SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(a) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(b) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption
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by the Trustee in the name, and at the expense, of the Company, and
the Company,
in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607 and to any
Authenticating Agent under Section 614 and, if money or U.S. Government
Obligations shall have been deposited with the Trustee in accordance with
Section 403 or 1005, the obligations of the Company to the Trustee under Section
402(2), and, if money shall have been deposited with the Trustee pursuant to
subclause (b) of clause (1) of this Section the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive such
satisfaction and discharge.
SECTION 402. Application of Trust Money.
(1) Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401, all money and U.S.
Government Obligations deposited with the Trustee pursuant to Section 403 or
1005 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 403 or 1005, shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Section 403 or 1005.
(2) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 403 or 1005 or the interest and
principal received in respect of such obligations other than any payable by or
on behalf of Holders.
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(3) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it as
provided in Section 403 or 1005 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are then in excess of the amount thereof which
then would have been required to be deposited for the purpose for which such
money or U.S. Government Obligations were deposited or received.
SECTION 403. Defeasance and Discharge of Securities of Any Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Securities of any series, then notwithstanding Section 401, the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Outstanding Securities of that series, the provisions of this Indenture
as it relates to such Outstanding Securities (except as to the rights of Holders
of Securities to receive, from the trust funds described in subparagraph (1)
below, payment of the principal of (and premium, if any) and any installment of
principal of (and premium, if any) or interest on such Securities on the Stated
Maturity of such principal or installment of principal or interest or any
mandatory sinking fund payments or analogous payments applicable to the
Securities of that series on the day on which such payments are due and payable
in accordance with the terms of the Indenture and of such Securities, the
Company's obligations with respect to such Securities under Sections 305, 306,
1002 and 1003 and the rights, powers, trusts, duties and immunities of the
Trustee hereunder) shall no longer be in effect, and the Trustee, at the expense
of the Company, shall, upon Company Request, execute proper instruments
acknowledging the same, provided that the following conditions have been
satisfied:
(1) the Company has deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 609),
irrevocably (irrespective of whether the conditions in subparagraphs (2), (3),
(4) and (5) below have been satisfied, but subject to the provisions of Section
402(3) and the last paragraph of Section 1003), as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Securities of that series, with reference to this Section
403, (A) money in an amount, or (B) U.S. Government Obligations which through
the payment of interest and principal in respect thereof in accordance with
their terms will provide not later than the opening of business on the due date
of any payment referred to in clause (i) or (ii) of this subparagraph (1) money
in an amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge (i)
the principal of (and premium, if any) and each installment of principal (and
premium, if any) and interest on such Outstanding Securities on the Stated
Maturity of such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to Securities
of such series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities;
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(2) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(3) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to the
Securities of that series shall have occurred and be continuing on the date of
such deposit and no Event of Default under Section 501(5) or Section 501(6) or
event which with the giving of notice or lapse of time or both, would become an
Event of Default under Section 501(5) or Section 501(6) shall have occurred and
be continuing on the 91st day after such date;
(4) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date first
set forth hereinabove, there has been a change in the applicable Federal Income
Tax law, in either case (A) or (B) to the effect that Holders of the Securities
of that series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to federal income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit, defeasance and
discharge had not occurred; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance and discharge of the entire
indebtedness on all Outstanding Securities of any such series as contemplated by
this Section have been complied with.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
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(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of a series of Securities other than that series), and
continuance of such default or breach for a period of 60 days after there has
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 Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such decree
or order for relief or any such other decree or order unstated and in effect for
a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of
any substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) default (including a default with respect to debt securities of
any series other than the Securities) 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
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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 Securities, 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 Administration 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; or
(8) any other Event of Default provided with respect to Securities
of that series.
Upon receipt by the Trustee of any Notice of Default pursuant to
this Section 501 with respect to Securities of a series all or part of which is
represented by a Book-Entry Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such Notice of Default, which record date shall be at the close of business on
the day the Trustee receives such Notice of Default. The Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to join in such Notice of Default, whether or not such Holders remain Holders
after such record date; provided, that unless Holders of at least 10% in
principal amount of the Outstanding Securities of such series, or their proxies,
shall have joined in such Notice of Default prior to the day which is 90 days
after such record date, such Notice of Default shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new Notice of Default which is
identical to a Notice of Default which has been canceled pursuant to the proviso
to the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 501.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such
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declaration such principal amount (or specified amount) shall become immediately
due and payable, except that no such declaration shall be required upon the
occurrence of an Event of Default specified in Section 501(5) or 501(6).
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(a) all overdue interest on all Securities of that series,
(b) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed therefor
in such Securities,
(c) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal and premium, if any, of Securities
of that series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Trustee of any written notice declaring such an
acceleration, or recision and annulment thereof, with respect to Securities of a
series all or part of which is represented by a Book-Entry Security, a record
date shall be established for determining Holders of Outstanding Securities of
such series entitled to join in such notice, which record date shall be at the
close of business on the day the Trustee receives such notice. The Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite
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percentage having joined in such notice prior to the day which is 90 days after
such record date, such declaration of acceleration, or rescission and annulment,
as the case may be, shall automatically and without further action by any Holder
be canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after expiration of such 90-day
period, a new written notice of declaration of acceleration, or rescission or
annulment thereof, as the case may be, which has been canceled pursuant to the
proviso to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 502.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof, the Company will, upon demand
of the Trustee, pay to it, for the benefit of the Holders of such Securities,
the whole amount then due and payable on such Securities for principal and any
premium and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of which
or for the benefit of which
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such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for principal
and any premium and interest, respectively.
THIRD: To the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the
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Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
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(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any written notice directing the
time, method or place of conducting any such proceeding or exercising any such
trust or power, with respect to Securities of a series all or part of which is
represented by a Book-Entry Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such notice, which record date shall be at the close of business on the day the
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that unless Holders of a majority in principal amount of the
Outstanding Securities of such series shall have joined in such notice prior to
the day which is 90 days after such record date, such notice shall automatically
and without further action by any Holder be canceled and of no further effect.
Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from
giving, after expiration of such 90-day period, a new notice identical to a
notice which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 512.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this
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Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs
(including reasonable attorneys' fees and expenses) against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act and this Indenture. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee, upon receipt by a Responsible Officer of such notice of
default, shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust
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Indenture Act; provided, however, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
(whether in its original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its own selection and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney at the expense of the
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Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation of Trustee;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(8) the rights, privileges and benefits (including right to
indemnity) of trustee are extended to and shall be enforceable by the trustee in
each of its capacities hereunder and each agent employed to act hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the process thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as
shall be agreed upon from time to time in writing for all services rendered by
it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
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(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or willful misconduct; and
(3) to fully indemnify the Trustee and any predecessor Trustee for,
and to hold it harmless against, any and all loss, claim, damage, liability or
expense (including taxes other than taxes based on the income of the Trustee)
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the
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Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company or by any
such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all Securities, or (ii)
subject to Section 514, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required
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by Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(6) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
106. Each notice shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(1) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(2) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
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become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(3) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (2) and (3) of this Section, as the case may be.
(4) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities
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so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Bank of New York
As Trustee
By:_____________________________
As Authenticating Agent
By:_____________________________
Authorized Officer
SECTION 615. Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application
(which date shall not be less than three Business Days after the date any
officer of the Company actually receives such application, unless any such
officer shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an omission), the
Trustee shall have received written instructions in response to such application
specifying the action to be taken or omitted.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after each Regular Record
Date for each series of Securities at the time Outstanding, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders
as of such Regular Record Date (or a date to be determined pursuant to Section
301 for Original Issue Discount Securities) and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished; excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(1) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(2) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(3) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(1) The Trustee shall transmit to the Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
In the case of any reports pursuant to Section 313(a) of the Trust
Indenture Act, such reports shall be transmitted within 60 days after April 15
of each year commencing with the year 1997 and shall be dated as of April 15.
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(2) A copy of each such report shall, at the time of such
transmission to the Holders, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the Company.
The Company will notify the Trustee when any Securities are listed on any stock
exchange or delisted therefrom.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person where the Company is not the surviving corporation, or convey, transfer
or lease its properties and assets substantially as an entirety to any Person,
unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety shall be a
corporation, partnership or trust, shall be organized and validly existing under
the laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of and any premium and interest on all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing;
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form,
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registrable or not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in uncertificated
form or to facilitate the issuance of Securities in global form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (i) shall neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section 611;
or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture, provided that such action pursuant to this clause (8) shall not
adversely affect the interests of the Holders of Securities of any series in any
material respect; or
(9) to secure the Securities.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of
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the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1007, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby, provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1007, or the deletion of this
proviso, in accordance with the requirements of Sections 611(2) and 901(8), or
(4) adversely affect the rights of such Holder under any mandatory
redemption or repurchase provision or any right of redemption or repurchase at
the option of such Holder.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities of that series and this Indenture.
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SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the
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Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any premium
or interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. 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 Securities.
SECTION 1005. Defeasance of Certain Obligations.
If this Section 1005 is specified, as contemplated by Section 301,
to be applicable to Securities of any series, (i) the Company may omit to comply
with any term,
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provision or condition of those certain covenants established pursuant to
Sections 301 and 1004 hereof and to which this Section 1005 is to be made
applicable, and (ii) Section 501(4) with respect to such covenants to which this
Section 1005 is to be made applicable shall be deemed not to be an Event of
Default, in each case with respect to the Securities of that series, provided
that the following conditions have been satisfied:
(1) With reference to this Section 1005, the Company has deposited
or caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609) irrevocably (irrespective of whether the conditions
in subparagraphs (2), (3), (4), (5) and (6) below have been satisfied, but
subject to the provisions of Section 402(3) and the last paragraph of Section
1003), as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of that
series, (A) money in an amount, or (B) U.S. Government Obligations which through
the payment of interest and principal in respect thereof in accordance with
their terms will provide not later than the opening of business on the due date
of any payment referred to in clause (i) or (ii) of this subparagraph (1) money
in an amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge (i) the principal (and premium, if any) and each installment of
principal (and premium, if any) and interest on the Outstanding Securities of
that series on the Stated Maturity of such principal or installment of principal
or interest and (ii) any mandatory sinking fund payments or analogous payments
applicable to Securities of such series on the day on which such payments are
due and payable in accordance with the terms of this Indenture and of such
Securities;
(2) Such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest for purposes of the
Trust Indenture Act with respect to the Securities of any series;
(3) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(4) No Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to the
Securities of that series shall have occurred and be continuing on the date of
such deposit and no Event of Default under Section 501(5) or Section 501(6) or
event which with the giving of notice or lapse of time, or both, would become an
Event of Default under Section 501(5) or Section 501(6) shall have occurred and
be continuing on the 91st day after such date;
(5) The Company has delivered to the Trustee an Opinion of Counsel
to the effect that Holders of the Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and defeasance of certain obligations and will be subject to federal income tax
on the same amount and in the same manner and at
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the same times, as would have been the case if such deposit and defeasance had
not occurred; and
(6) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by this
Section have been complied with.
SECTION 1006. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officer's certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
company shall be in default, specifying all such defaults and the nature and
status thereof which they may have knowledge.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
SECTION 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition of those certain covenants contained herein or
established pursuant to Section 301 hereof to which this Section 1007 is said to
be applicable, with respect to the Securities of any series if before the time
for such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any such term,
provision or condition. If a record date is fixed, the Holders on such record
date or their duly designated proxies, and only such Persons, shall be entitled
to waive any such term, provision or condition hereunder, whether or not such
Holders remain Holders after such record date; provided, that unless the Holders
of at least a majority in principal amount of the Outstanding Securities of such
series
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shall have waived such term, provision or condition prior to the date which is
90 days after such record date, any such waiver previously given shall
automatically and without further action by any Holder be canceled and of not
further effect.
SECTION 1008. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of the original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or by action taken pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate (but subject to compliance with the rules of any
Securities Exchange on which the Securities of such series may be listed) and
which may provide for the selection for redemption of portions (equal to the
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minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series; provided that if less than all the Securities of a series having
different tenor are to be redeemed, the specific Securities to be redeemed shall
be selected by the Company. If less than all of the Securities of such series
and of a specified tenor are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company (or, in the case of a
selection by the Company, the Company shall promptly notify the Trustee) in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
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(6) that the redemption is for a sinking fund, if such is the case,
and
(7) the CUSIP numbers, if any, of the Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal
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<PAGE> 73
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Book-Entry Security is so surrendered, such
new Security so issued shall be a new Book-Entry Security.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
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<PAGE> 74
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 and not more than 60 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1106 and 1107.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
AMERCO,
a Nevada corporation
By: Gary V. Klinefelter
-------------------------------
Gary V. Klinefelter
Secretary and General Counsel
THE BANK OF NEW YORK,
as Trustee
By: Mary Jane Schmalzel
--------------------------------
Its: Vice President
--------------------------------
67
<PAGE> 1
Exhibit 4.3
AMERCO
TO
THE BANK OF NEW YORK, TRUSTEE
----------------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF APRIL 5, 1999
TO
SENIOR INDENTURE
DATED AS OF APRIL 1, 1999
----------------
7.20% SENIOR NOTES DUE 2002
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page(s)
-------
<S> <C>
RECITALS OF THE COMPANY........................................................................................... 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF SPECIAL APPLICATION............................................. 1
SECTION 101. Definitions.................................................................................... 1
SECTION 102. Senior Indenture............................................................................... 7
SECTION 103. Counterparts................................................................................... 7
ARTICLE TWO FORM OF THE NOTES................................................................................... 7
SECTION 201. Form of the Face of the Notes.................................................................. 7
SECTION 202. Form of the Reverse of the Notes............................................................... 9
SECTION 203. Form of the Certificate of Authentication...................................................... 14
ARTICLE THREE GENERAL TERMS AND CONDITIONS OF THE NOTES......................................................... 15
SECTION 301. Designation of Securities and Amounts Thereof.................................................. 15
SECTION 302. Payment of Principal and Interest.............................................................. 15
SECTION 303. Ranking........................................................................................ 16
SECTION 304. Book-Entry System.............................................................................. 16
ARTICLE FOUR SATISFACTION AND DISCHARGE......................................................................... 17
SECTION 401. Defeasance of the Notes........................................................................ 17
ARTICLE FIVE REMEDIES........................................................................................... 18
SECTION 501. Events of Default.............................................................................. 18
ARTICLE SIX COVENANTS........................................................................................... 18
SECTION 601. Limitation on Liens Securing Indebtedness...................................................... 18
SECTION 602. Limitation on Sale and Leaseback............................................................... 20
SECTION 603. Restrictive Agreements......................................................................... 20
SECTION 604. Defeasance of Certain Obligations.............................................................. 21
ARTICLE SEVEN PURCHASE OF SECURITIES............................................................................ 21
SECTION 701. Purchase of Securities at the Option of Holders Upon a Change in Control....................... 21
ARTICLE EIGHT MODIFICATIONS..................................................................................... 23
SECTION 801. Modification or Amendment...................................................................... 23
</TABLE>
i
<PAGE> 3
FIRST SUPPLEMENTAL INDENTURE, dated as of the 5th day of April, 1999
(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 The Bank of New York, a New York banking corporation,
having its principal corporate trust office in New York, New York, as Trustee
(herein called the "Trustee") under the Senior Indenture dated as of April 1,
1999 between the Company and the Trustee (the "Senior Indenture").
RECITALS OF THE COMPANY
The Company has executed and delivered the Senior Indenture to the
Trustee to provide for the issuance of its senior 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 Senior
Indenture, in an unlimited aggregate principal amount which may be authenticated
and delivered thereunder as provided in the Senior Indenture.
Pursuant to the terms of the Senior Indenture, the Company desires to
provide for the establishment of a new series of notes to be known as its 7.20%
Senior Notes Due 2002 (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 Senior 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:
<PAGE> 4
(1) terms used herein and not otherwise defined herein shall
have the respective meanings assigned thereto in the Senior 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:
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price of the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for that redemption date.
"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, after excluding all
amounts required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, water and utility rates and similar charges.
"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.
"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.
"Change in Control" means the occurrence of (i) any consolidation,
share exchange or merger regarding the Company in which the Company is not the
continuing or surviving corporation or where the Company's Voting Stock would be
converted into cash, securities or other property, other than a merger in which
the Holders of the Company's Voting Stock immediately prior to the merger have
the same or greater direct or indirect proportionate ownership of the surviving
corporation's Voting Stock immediately after the merger as they had of the
Company's Voting Stock immediately before the merger, or (ii) any person or
group (as either such term is used in Section 13(d) and 14(d) of the Exchange
Act), including Affiliates of the Company (but not including the Company, the
Company's Subsidiaries, employee stock ownership plans or employee benefit plans
of the Company or the Company's Subsidiaries or Permitted Persons), filing a
Schedule 13D or 14D-1 (or any successor schedule, form or report under the
Exchange Act) disclosing that such a person has become the beneficial owner (as
2
<PAGE> 5
defined in Rule 13d-2 and 13d-5 under the Exchange Act), directly or indirectly,
of 50% or more of the Company's Voting Stock.
"Change in Control Notice" has the meaning specified in Section 701
hereof.
"Change in Control Payment Date" has the meaning specified in Section
701 hereof.
"Change in Control Purchase" has the meaning specified in Section 701
hereof.
"Change in Control Triggering Event" means the occurrence of both a
Change in Control and a Rating Decline with respect to the Notes.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be utilized, at the time of a
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Notes.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest Reference Treasury Dealer
Quotation, or (ii) if the Trustee obtains fewer than three Reference Treasury
Dealer Quotations, the average of the quotations.
"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.
"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.
"Global Security" has the meaning specified in Section 304 hereof.
"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
3
<PAGE> 6
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.
"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.
"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.
"Investment Grade Rating" means a rating equal to or higher than BBB-
(or the equivalent) by Standard & Poor"s Rating Group (or any successor to the
rating agency business thereof), BBB- (or the equivalent) by Fitch IBCA, Inc.
(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 Senior 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) 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
4
<PAGE> 7
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 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).
"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.
"Purchase Date" has the meaning specified in Section 701 hereof.
"Purchase Notice" has the meaning specified in Section 701 hereof.
"Purchase Price" has the meaning specified in Section 701 hereof.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
"Rating Agencies" means Standard & Poor's Rating Group, Fitch IBCA,
Inc. and Duff & Phelps Credit Rating Co. 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 in Control and (ii) public notice of the occurrence of a Change in
Control or of the intention of the Company to effect a Change in 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 in Control or of the intention by the Company to effect a
Change in 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 Fitch IBCA,
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 either Standard &
Poor's Rating Group or Fitch IBCA, Inc. shall decrease by one or more gradations
(including gradations within rating categories as well as between rating
categories).
5
<PAGE> 8
"Reference Treasury Dealer" means (i) each of NationsBanc Montgomery
Securities LLC, Morgan Stanley & Co. Incorporated and their respective
successors; however, if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company will substitute another Primary Treasury Dealer; and (ii) any other
Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by the Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding the redemption date.
"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.
"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.
6
<PAGE> 9
SECTION 102. Senior Indenture.
The Senior 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 Senior 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 in the
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.]
7
<PAGE> 10
AMERCO
7.20% Senior Notes Due 2002
No.__________ $__________
CUSIP No. 023586AE0
AMERCO, a corporation duly organized and existing under the
laws of Nevada (herein called the "Company," which terms includes any
successor Person under the Senior Indenture hereinafter referred to),
for value received, hereby promises to pay to ________________ or
registered assigns, the principal sum of __________ _____________ on
April 1, 2002 and to pay interest thereon from April 5, 1999 or from
the most recent Interest Payment Date on which interest has been paid
or duly provided for, semi-annually on April 1 and October 1 of each
year (each an "Interest Payment Date") commencing October 1, 1999, at
the rate of 7.20% 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 7.20% 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
April 5, 1999 (the "Supplemental Indenture") between the Company and
The Bank of New York, as Trustee (the "Trustee," which term includes
any successor trustee under the Senior Indenture referred to below),
whether by cross-reference or otherwise and in the Senior Indenture.
The Supplemental Indenture is one of the supplemental indentures
referred to in and executed in accordance with the terms of the Senior
Indenture dated as of April 1, 1999 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 Senior
Indenture and the Supplemental Indenture hereinafter referred to, 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 March 15 or September 15 (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 Senior 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
Senior Indenture and the Supplemental
8
<PAGE> 11
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, however, that at the
option of the Company payment of interest may be made by: (1) wire
transfer on the date of payment in immediately available federal funds
or next day funds to an account specified by written notice to the
Trustee from any Holder of Notes; (2) any similar manner that such
Holder may designate in writing to the Trustee; or (3) by check mailed
to the address of the Holder 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 Senior 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 Senior Indenture, on the other, the
terms of the Supplemental Indenture and the Senior Indenture shall
govern.
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 Senior 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________________________
Name:
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 Senior Indenture and the
Supplemental Indenture, to which Senior 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
9
<PAGE> 12
to be, authenticated and delivered. This Note is one of the series
designated on the face hereof, limited in aggregate principal amount to
$150,000,000.
Pursuant to Section 701 of the Supplemental Indenture, upon
the occurrence of a Change in 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 in
Control Payment Date plus accrued and unpaid interest, if any, to the
Change in 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 in Control Notice.
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 hereof,
provided that each new Note issued shall be in a principal amount in
denominations of $1,000 and integral multiples thereof.
The Notes will be redeemable, in whole or in part, at the
Company's option at any time at a Redemption Price equal to the greater
of (i) 100% of the principal amount of the Notes, and (ii) as
determined by the Quotation Agent, the sum of the present values of the
remaining scheduled payments of principal and interest on the Notes
(not including any portion of those payments of interest accrued as of
the Redemption Date) discounted to the Redemption Date on a semi-annual
basis assuming a 360 day year consisting of twelve 30 day months at the
Adjusted Treasury Rate plus 35 basis points plus, in each case, accrued
and unpaid interest on the Notes to the Redemption Date. In the case of
a partial redemption, pursuant to Section 1103 of the Senior Indenture,
selection of the Notes for redemption will be made pro rata, by lot or
such other method as the Trustee in its sole discretion deems
appropriate and fair. No Notes of a principal amount of $1,000 or less
will be redeemed in part. The Notes 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
all future 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 Senior
Indenture and the Supplemental Indenture.
The Senior 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
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<PAGE> 13
applicable, of the Notes at the time Outstanding. The Senior 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 Senior
Indenture and the Supplemental Indenture and certain past defaults
under the Senior 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 Senior Indenture and the
Supplemental Indenture and no provision of this Note or of the Senior
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 Senior 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 Senior 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 Senior 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.
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
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<PAGE> 14
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 without giving effect to
principles of conflicts of law.
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<PAGE> 15
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
In connection with the Change in Control Notice 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 in
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 Note in every particular, without alteration or
any change whatsoever.
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<PAGE> 16
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.
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:
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<PAGE> 17
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Senior Indenture.
THE BANK OF NEW YORK,
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 "7.20% Senior Notes Due 2002" (herein called the "Notes"),
limited in aggregate principal amount to $150,000,000.
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 April 1, 2002 (the "Maturity" for
the purposes of the Notes under this Supplemental Indenture).
The Notes shall bear interest at 7.20% per annum, subject to the
provisions of the following paragraph, from and including April 5, 1999 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 April 1 and October 1 of each year, commencing on October
1, 1999 (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 March 15 or October 15, 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).
For so long as the Notes are represented by one or more Global
Securities, all payments of principal and interest shall be made by the Company
in immediately available funds in
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<PAGE> 18
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 one
or more Global Securities 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 are subject to redemption by the Company in whole or in part
in the manner described therein 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 all 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 Senior 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 Security 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 Senior 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 Senior 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
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<PAGE> 19
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.
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 Senior
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 Senior Indenture.
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<PAGE> 20
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
For all purposes of the Senior Indenture and this Supplemental
Indenture relating to the Notes, the following shall be an Event of Default in
addition to the Events of Default enumerated in Section 501 of the Senior
Indenture:
the failure to perform the obligations of the Company set forth in
Section 701 of the Supplemental Indenture (including the obligation to
purchase the Notes required to be purchased following a Change in
Control Purchase in accordance with the terms of the Change in Control
Notice and the Supplemental Indenture).
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 Senior 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
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<PAGE> 21
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 subclause (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;
(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.
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<PAGE> 22
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 180 days of the date of the sale thereof, to either (a)
redemption or retirement of the Notes or (b) the payment (other than
payments due at maturity or in satisfaction of, or applied to, any
mandatory or scheduled payment or prepayment 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
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<PAGE> 23
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. 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 Senior Indenture and under
the Notes, to the extent that all of the conditions set forth in Section 403 of
the Senior Indenture have been met.
ARTICLE SEVEN
PURCHASE OF SECURITIES
SECTION 701. Purchase of Securities at the Option of Holders Upon a Change in
Control.
(a) If any Change in Control Triggering Event regarding the Company
occurs on or prior to maturity of the Notes, each Holder of Notes will have the
right, at the Holder's option, subject to the terms and conditions of the Senior
Indenture, to require the Company to purchase (the "Change in Control Purchase")
all or any part of the Holder's Notes (so long as the principal amount is $1,000
or an integral multiple of $1,000) on the date that is 60 Business Days after
the occurrence of the Change in Control Triggering Event (the "Purchase Date").
If a Holder exercises this option, the Company will purchase that Holder's Notes
for cash equal to 101% of the principal amount of the Notes plus any interest
accrued and unpaid on the Notes through the Purchase Date (the "Purchase Price")
in accordance with the procedures set forth in this Section 701.
(b) Within 30 Business Days after a Change in Control Triggering Event,
the Company is obligated to mail to the Trustee and to all Holders of the Notes
at their addresses shown in the Security Register (and to beneficial owners as
required by applicable law) a notice (the "Change in Control Notice") regarding
the Change in Control Triggering Event. The Change in Control Notice shall
state, among other things:
(1) the date by which the Holder must give the Purchase Notice;
(2) the Purchase Price;
(3) the Purchase Date;
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<PAGE> 24
(4) the name and address of the Trustee and of any other office or
agency maintained for the purpose of the surrender of the
Notes for purchase;
(5) the procedures for withdrawing a Purchase Notice; and
(6) the procedures that a Holder must follow to exercise these
rights.
The Company will have the Change in Control Notice published in a daily
newspaper of national circulation.
(c) To exercise the right to have the Company purchase the Notes, a
Holder must deliver written notice (a "Purchase Notice") to the Trustee or to
any other office or agency maintained for that purpose of the Holder's exercise
of that right before the close of business on the Business Day immediately prior
to the Purchase Date. The Purchase Notice must state:
(1) the certificate number of the Note or Notes to be delivered by
the Holder for purchase by the Company;
(2) the portion of the principal amount of the Notes to be
purchased (which must be $1,000 or an integral multiple of
$1,000); and
(3) that the Notes will be submitted to the Company accompanied by
a duly completed form of "Option of Holder to Elect Purchase"
contained on the reverse of such Notes, to the Company to be
given to the Trustee as Security 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 Purchase Date for purchase on the
Purchase Date pursuant to the applicable provisions of the
Notes.
A Holder may withdraw any Purchase Notice by written notice of
withdrawal delivered to the Trustee or to any other office or agency maintained
for such purpose no later than the Business Day immediately prior to the
Purchase Date. The notice of withdrawal must state the principal amount and the
certificate numbers of the Notes as to which the withdrawal notice relates and
the principal amount, if any, of the Holder's Notes which remains subject to the
original Purchase Notice.
(d) On the Purchase Date, the Company shall (i) accept for payment the
Notes or portions thereof tendered pursuant to the Change in Control Notice,
(ii) deposit with the Trustee money sufficient to pay the aggregate 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 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.
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<PAGE> 25
(e) 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 in Control Notice. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions relating to the Change in Control Notice, 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.
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 Senior
Indenture. Notwithstanding anything in Article Nine of the Senior Indenture to
the contrary, modification or amendment to this Supplemental Indenture or the
Senior Indenture may not waive the Company's obligation to make a Change in
Control Purchase 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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<PAGE> 26
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
AMERCO
By: Gary V. Klinefelter
---------------------------------
Name: Gary V. Klinefelter
Title: Secretary and General Counsel
THE BANK OF NEW YORK,
as Trustee
By: Mary Jane Schmalzel
----------------------------------
Name: Mary Jane Schmalzel
Title: Vice President
24
