<PAGE> 1
As filed with the Securities and Exchange Commission on August 3, 1994
Securities Act File No. 33-54747
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1
FORM S-3/A
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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XTRA CORPORATION XTRA, INC.
(Exact Names of Registrants as Specified in Their Charters)
DELAWARE MAINE
(States or Other Jurisdictions of Incorporation or Organization)
06-0954158 01-0346274
(I.R.S. Employer Identification Nos.)
c/o X-L-CO., INC., 60 State Street, Boston, Massachusetts 02109 (617) 367-5000
(Address, including zip code and telephone number, including area code, of
registrants' principal executive offices)
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JAMES R. LAJOIE, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
C/O X-L-CO., INC.
60 STATE STREET, BOSTON, MA 02109 (617) 367-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
DAVID A. FINE, ESQ. ROBERT W. REEDER, ESQ.
Ropes & Gray Sullivan & Cromwell
One International Place 250 Park Avenue
Boston, MA 02110 New York, NY 10177
(617) 951-7000 (212) 558-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effectiveness of this Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
==================================================================================================================================
Title of each class of Amount to be Maximum offering Maximum aggregate Amount of
securities to be registered registered (1) price per unit(2) offering price(2) registration fee
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<S> <C> <C> <C> <C>
Common stock of XTRA Corporation
(par value $.50 per share)... (6)
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Preferred stock of XTRA Corporation
(without par value)... (6)
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Debt securities of XTRA, Inc.... (6) (3)(4)
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Guarantees by XTRA Corporation
of Debt Securities of XTRA, Inc.... (6) (5) (5) (5)
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Total $410,000,000 100% $410,000,000(6) $141,379.31
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<FN>
(1) Plus such indeterminate number of shares of Common Stock, and indeterminate amounts of Debt Securities and Preferred
Stock, as may be issued upon conversion or exchange of any other Debt Securities or Preferred Stock that provide for
conversion or exchange into other securities.
(2) Estimated solely for the purpose of determining the registration fee in accordance with Rule 457 under the Securities
Act of 1933.
(3) Or, if Debt Securities are issued with the principal denominated in a foreign currency, such principal amount as shall
not exceed an aggregate initial offering price the equivalent of U.S. $410,000,000 at the time of initial offering.
(4) Or, if any Debt Securities are issued at original discount, such greater amount as shall not exceed an aggregate initial
offering price of $410,000,000.
(5) No separate registration fee is required for the Guarantees in accordance with Rule 457(n).
(6) In no event will the aggregate initial offering price of the Common Stock, Preferred Stock, Debt Securities and
Guarantees exceed $410,000,000.
</TABLE>
<PAGE> 2
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included herein also relates to a total of $90,000,000 of Debt Securities of
XTRA, Inc., guaranteed by XTRA Corporation, that are registered under
Registration Statement No. 33-43481, which was declared effective on December
10, 1991. In the event any of such previously registered Debt Securities are
offered and sold prior to the effective date of this Registration Statement,
the amount of such Debt Securities will not be included in any Prospectus
hereunder.
-------------------
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
-2-
<PAGE> 3
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
SUBJECT TO COMPLETION, DATED AUGUST 3, 1994
$500,000,000
XTRA CORPORATION
PREFERRED STOCK AND COMMON STOCK
XTRA, INC.
DEBT SECURITIES
GUARANTEED AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY
XTRA CORPORATION
------------------------
XTRA Corporation may offer and sell from time to time, together or
separately, (i) shares of its Preferred Stock, no par value (the "Preferred
Stock"), in one or more series, and/or (ii) shares of its Common Stock, par
value $0.50 per share (the "Common Stock"), and XTRA, Inc., a wholly-owned
subsidiary of XTRA Corporation, may offer and sell from time to time its debt
securities (the "Debt Securities"), which may be either senior debt securities
("Senior Securities") or subordinated debt securities ("Subordinated
Securities"), consisting of unsecured debentures, notes and/or other evidences
of its indebtedness in one or more series at prices and on terms to be
determined at the time or times of sale. XTRA Corporation will unconditionally
guarantee on a senior or subordinated basis, as the case may be, the payment of
principal of, premium, if any, and interest on the Debt Securities (the
"Guarantees"). The Debt Securities, Preferred Stock, Common Stock and Guarantees
are referred to herein collectively as the "Securities." The aggregate initial
offering price of the Securities will not exceed $500,000,000 (or its equivalent
(based on the applicable exchange rate at the time of sale) in one or more
foreign currencies, currency units or composite currencies as shall be
designated by XTRA Corporation or XTRA, Inc. as the case may be).
For each offering of Securities for which this Prospectus is being
delivered, there will be an accompanying Prospectus Supplement (each a
"Prospectus Supplement") that sets forth (i) the specific designation, aggregate
principal amount, denominations, currency of payment, maturity, premium, if any,
interest rate, if any (which may be fixed or variable) or method of calculation
thereof, time of payment of any interest, terms for any redemption at the option
of XTRA, Inc. or the holder, terms for any sinking fund payments, subordination
provisions, if any, any listing on a national securities exchange, the form of
the Debt Securities (which may be in registered or permanent global form), the
initial public offering price and certain other terms of and in connection with
the offering and sale of the Debt Securities in respect of which this Prospectus
is being delivered; (ii) the terms of the Guarantees in respect of which this
Prospectus is being delivered; (iii) the specific series designation, number of
shares, the stated value and liquidation preference per share, initial public
offering price, dividend rate (or method of calculation), dates on which
dividends will be payable and dates from which dividends will accrue, optional
or mandatory redemption or sinking fund provisions, any conversion or exchange
rights, any listing of the Preferred Stock on a national securities exchange,
any voting rights and any other terms in connection with the offer and sale of
the Preferred Stock, if any, in respect of which this Prospectus is being
delivered; and (iv) the number of shares and initial public offering price of
the Common Stock in respect of which this Prospectus is being delivered. The
Prospectus Supplement will also contain information, as applicable, about
certain United States Federal income tax considerations relating to the
Securities in respect of which this Prospectus is being delivered. See
"Description of Debt Securities of XTRA, Inc.," "Description of Preferred Stock
of XTRA Corporation" and "Description of Common Stock of XTRA Corporation."
The Senior Securities of XTRA, Inc. will rank equally with all other
unsubordinated and unsecured indebtedness of XTRA, Inc. The Subordinated
Securities will be subordinated to all existing and future Senior Indebtedness
(as defined) of XTRA, Inc. and the Guarantees of the Subordinated Securities
will be subordinated to all existing and future Senior Guarantor Indebtedness
(as defined) of XTRA Corporation.
XTRA Corporation's Common Stock is listed on the New York Stock Exchange
under the symbol "XTR." Any Common Stock offered will be listed, subject to
notice of issuance, on such exchange.
The Securities may be sold to or through underwriters, and also may be sold
directly by XTRA Corporation or XTRA, Inc. to other purchasers or through
agents. See "Plan of Distribution." The names of and the principal amounts to be
purchased by any underwriters or sold through any agents and the compensation of
such underwriters or agents will be set forth in an accompanying Prospectus
Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
The date of this Prospectus is , 1994
<PAGE> 4
AVAILABLE INFORMATION
XTRA Corporation ("XTRA" or the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information filed by the Company can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's regional offices at 7 World Trade Center, 13th Floor, New York, New
York 10048, and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661, and copies of such material can be obtained by mail from the
Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. In addition, such material may also be
inspected at the offices of the New York Stock Exchange, Inc. (the "NYSE"), 20
Broad Street, New York, New York 10005, upon which exchange the Company's Common
Stock is listed.
XTRA, Inc. and the Company have filed with the Commission a joint
registration statement on Form S-3 (herein, together with all amendments and
exhibits, referred to as the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"). This Prospectus does not contain all
of the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information reference is hereby made to the Registration
Statement.
------------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-7654)
pursuant to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1993;
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1993 and March 31, 1994;
3. The Company's Current Report on Form 8-K dated August 3, 1994;
4. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10 dated July 1, 1964, including
any amendments or reports filed for the purpose of updating such
description; and
5. All other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the
Securities offered hereby.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the request of any such person, a copy of any or
all of the documents that are incorporated herein by reference other than the
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Requests for such copies should be directed
to the Company c/o its management subsidiary, X-L-CO., INC., at 60 State Street,
Boston, Massachusetts 02109, Attention: Investor Relations, telephone (617)
367-7810.
THE COMPANY
The Company is engaged in transportation equipment leasing and conducts its
operations through its subsidiary, XTRA, Inc. The Company's leasing equipment is
offered to private fleet owners, contract and common carriers, railroads and
steamship lines to cover cyclical, seasonal or geographic shortages and as a
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<PAGE> 5
substitute for purchasing equipment. The Company's two operating divisions are
XTRA Lease and XTRA Intermodal. XTRA Lease leases, primarily on an operating
basis, over-the-road trailers as well as older trailers for mobile storage use.
XTRA Intermodal leases, primarily on an operating basis, intermodal trailers,
chassis and domestic containers.
The Company was organized in 1957 as a Massachusetts corporation. In 1976
it transferred substantially all of its operating assets to XTRA, Inc., a newly
organized Maine corporation, and the Company was organized as a holding company
under the laws of the State of Delaware. The Company's management subsidiary,
X-L-CO., Inc., is located at 60 State Street, Boston, Massachusetts 02109, and
its telephone number is (617) 367-5000.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities being
offered hereby for general corporate purposes. Such purposes may include, among
others, financing capital expenditures, repayment of outstanding short-term
borrowings and long-term debt and financing acquisitions in transportation
equipment or other equipment leasing product lines. Pending such use, the net
proceeds of any offering of the Securities offered hereby may be invested
temporarily in short-term marketable securities.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND
CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following tables set forth the historical ratios of earnings to fixed
charges of the Company and its consolidated subsidiaries and of XTRA, Inc. and
its consolidated subsidiaries and the historical ratio of earnings to combined
fixed charges and preferred stock dividends of the Company and its consolidated
subsidiaries for the years indicated. For purposes of computing the consolidated
ratios of earnings to fixed charges and consolidated ratio of earnings to
combined fixed charges and preferred stock dividends, "earnings" represent
income (loss) from continuing operations before taxes and extraordinary items
plus fixed charges. "Fixed charges" for continuing operations consist of
interest on indebtedness (including capitalized interest) and the portion of
rental expense that represents interest.
<TABLE>
XTRA CORPORATION
<CAPTION>
SIX MONTHS
FISCAL YEAR ENDED SEPTEMBER 30, ENDED MARCH 31,
----------------------------------------------- -------------------
1989 1990 1991 1992 1993 1993 1994
------- ------- ------- ------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges..................... 1.4X 0.7X 1.8X 2.7X 2.6X 2.4X 3.6X
Ratio of Earnings to Combined
Fixed Charges and Preferred
Stock Dividends............. 1.2X 0.6X 1.5X 2.1X 2.2X 2.0X 3.6X*
<FN>
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* No shares of the Company's Preferred Stock are currently outstanding.
</TABLE>
<TABLE>
XTRA, INC.
<CAPTION>
SIX MONTHS
FISCAL YEAR ENDED SEPTEMBER 30, ENDED MARCH 31,
----------------------------------------------- -------------------
1989 1990 1991 1992 1993 1993 1994
------- ------- ------- ------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges..................... 1.4X 0.7X 1.8X 2.7X 2.6X 2.4X 3.6X
</TABLE>
3
<PAGE> 6
The Company and XTRA, Inc. each reported a pretax loss for the fiscal year
ended September 30, 1990. For such period each of the Company and XTRA, Inc.
would have needed to generate additional income from continuing operations,
before provision for income taxes, of $12 million to cover its fixed charges of
$45 million and the Company would have needed to generate additional income from
continuing operations, before provision for income taxes, of $19 million to
cover its combined fixed charges and preferred stock dividends of $52 million.
DESCRIPTION OF DEBT SECURITIES OF XTRA, INC.
The following description sets forth certain general terms and provisions
of the Debt Securities of XTRA, Inc. to which any Prospectus Supplement may
relate. The particular terms of the Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply to
the Debt Securities so offered will be described in the Prospectus Supplement
relating to such Debt Securities.
The Debt Securities constitute either Senior Securities or Subordinated
Securities. The Senior Securities and related Guarantees are to be issued under
an Indenture dated as of , 1994 (the "Indenture"), among XTRA,
Inc., the Company, as Guarantor, and The First National Bank of Boston, as
Trustee (the "Senior Trustee"), the form of which Indenture is filed as an
exhibit to the Registration Statement. The Subordinated Securities and related
Guarantees will be issued under an Indenture (the "Subordinated Indenture") to
be entered into among XTRA, Inc., the Company, as Guarantor, and a trustee to be
designated prior to the issuance of any such Subordinated Securities, the form
of which Subordinated Indenture is also filed as an exhibit to the Registration
Statement. Information regarding the trustee (the "Subordinated Trustee") under
the Subordinated Indenture will be included in any Prospectus Supplement
relating to such Subordinated Securities. The Senior Indenture and the
Subordinated Indenture are sometimes collectively referred to herein as the
"Indentures;" the Senior Trustee and the Subordinated Trustee are sometimes
collectively referred to herein as the "Trustees" and individually as a
"Trustee." The following summary of certain provisions of the Indentures does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, all the provisions of the Indentures, including the definitions
therein of certain terms. Wherever particular provisions of defined terms of the
Indentures are referred to, such provisions or defined terms are incorporated
herein by reference. Certain defined terms in the Indentures are capitalized
herein. References in parentheses are to the Indentures.
GENERAL
The Indentures provide that unsecured Debt Securities of XTRA, Inc., not
limited in aggregate principal amount, may be issued in one or more series
thereunder. (Section 3.1) The Senior Securities will be unsecured obligations of
XTRA, Inc. and will rank on a parity with all other unsecured and unsubordinated
indebtedness of XTRA, Inc. Unless otherwise indicated in the applicable
Prospectus Supplement, the Subordinated Securities will be unsecured and
subordinated in right of payment to all existing and future Senior Indebtedness
of XTRA, Inc., in the manner and to the extent described below under
"Subordination of Subordinated Securities." XTRA, Inc.'s sources of payment of
the Debt Securities are leasing revenues from transportation equipment owned or
leased directly by it and remittances from its subsidiaries. In any liquidation,
foreclosure or other similar proceeding, creditors of the subsidiaries of XTRA,
Inc. will be entitled to payment of obligations owed to them before any assets
are distributed to XTRA, Inc.
The Debt Securities will be unconditionally guaranteed by the Company as to
payment of principal, premium, if any, and interest, except that the
Subordinated Securities will be guaranteed on a subordinated basis. (Section
2.2) See "Guarantees."
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for the following terms thereof, among
others: (1) the title of such Debt Securities; (2) any limit upon the aggregate
principal amount of such Debt Securities; (3) the person to whom any interest on
such Debt Securities shall be payable if other than the registered holder; (4)
the date or dates on which such Debt Securities will mature; (5) the rate or
rates at which such Debt Securities shall bear interest, if any, or the method
by which such rate or rates shall be determined; (6) the date or dates from
which any such
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<PAGE> 7
interest shall accrue, and the Interest Payment Dates on which payment of any
such interest will be payable and the Regular Record Dates for such Interest
Payment Dates (or method for establishing any such date or dates); (7) the place
or places where the principal of, premium, if any, and any interest on such Debt
Securities shall be payable; (8) the period or periods within which, the price
or prices at which, and the terms and conditions upon which such Debt Securities
may be redeemed, in whole or in part, at the option of XTRA, Inc.; (9) the
obligation, if any, of XTRA, Inc. to redeem, repay or purchase such Debt
Securities 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 such Debt Securities shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(10) the denominations in which any debt securities will be issuable, if other
than denominations of $1,000 and any integral multiple thereof; (11) if other
than U.S. dollars, the currency, currencies or currency unit or units in which
principal of, premium, if any, and interest on such Debt Securities shall be
payable and the manner of determining the equivalent thereof in the currency of
the United States for any purpose; (12) if the principal of or any premium or
interest on such Debt Securities is to be payable, at the election of XTRA, Inc.
or a Holder thereof, in one or more currencies or currency units other than that
or those in which such Debt 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 Debt Securities of such series as to which such election
is made shall be payable, and the period or periods within which and the terms
and conditions upon which such election is to be made; (13) the index or
formulas, if any, with reference to which the amount of any payment of principal
of, premium, if any, or interest on the Debt Securities will be determined; (14)
the portion of the principal amount of such Debt Securities which will be
payable upon declaration of acceleration of the Maturity thereof, if other than
the stated principal amount thereof; (15) if the principal amount payable at the
Stated Maturity of any of the Debt Securities will not be determinable as of any
one or more dates prior to the Stated Maturity, the amount which will be deemed
to be such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any Maturity other
than the Stated Maturity or which will be deemed to be Outstanding as of any
such date (or, in any such case, the manner in which such deemed principal
amount is to be determined); (16) the applicability of any provisions described
under "Certain Covenants of XTRA, Inc. and the Company" and any additional
restrictive covenants included for the benefit of Holders of such Debt
Securities; (17) any additional Events of Default with respect to such Debt
Securities; (18) whether such Debt Securities shall be issued, in whole or in
part, in permanent global form (each a "Global Security") and, in such case, the
Depositary for such Global Security or Securities; (19) in the case of an issue
of Subordinated Securities, the subordination provisions, if different from
those described under "Subordination of Subordinated Securities" and
"Guarantees" below; (20) the applicability of any provisions described below
under "--Defeasance," and (21) any other terms of such Debt Securities not
inconsistent with the provisions of the Indentures. (Sections 3.1 and 9.1)
Principal, premium, if any, and interest will be payable, and such Debt
Securities will be transferable, in the manner described in the Prospectus
Supplement relating to such Debt Securities. The maturities and interest rates
of certain Debt Securities sold through underwriters or agents may be fixed by
XTRA, Inc. from time to time, in which case no specific maturities or rates, but
rather permissible ranges of such maturities and rates will be set forth in the
Prospectus Supplement relating thereto.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Debt Securities will be exchangeable and transfers thereof will be
registrable at the offices or agencies of XTRA, Inc. maintained for such
purpose, initially in the case of the Senior Securities at the Corporate Trust
Office of the Senior Trustee in Canton, Massachusetts. In New York City, Senior
Securities may be presented for transfer or exchange at the office of BancBoston
Trust Company of NY. Principal of and premium, if any, and interest on the
Senior Securities will be payable at the office or agency in Canton,
Massachusetts of The First National Bank of Boston, as Paying Agent, provided
that, at the option of XTRA, Inc., payment of interest may be made by check
mailed to the address of the Person entitled thereto as it appears in the
Security Register. (Sections 3.1, 3.5 and 10.2) The offices or agencies of XTRA,
Inc. at which exchanges and transfers of Subordinated Securities will be
registrable and the office or agency of any Paying Agent with respect to the
Subordinated Securities will be identified in the Prospectus Supplement relating
thereto.
5
<PAGE> 8
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Debt Securities will be issued only in registered form, without coupons, in
denominations of $1,000 or any integral multiple thereof. (Section 3.2) No
service charge will be made for any transfer or exchange of the Debt Securities,
but XTRA, Inc. may require payment of a sum sufficient to cover any tax or other
governmental charge in connection therewith. (Section 3.5) The Indentures also
provide that the Debt Securities of any series, if so specified with respect to
a particular series, may be issued in permanent global form. See "Global
Securities."
Debt Securities may be issued at a discount from their stated principal
amount. United States Federal income tax considerations and other special
considerations applicable to any such Original Issue Discount Securities will be
described in the applicable Prospectus Supplement. "Original Issue Discount
Security" means any security which provides for an amount less than the stated
principal amount thereof to be due and payable upon the declaration of
acceleration of the maturity thereof upon the occurrence and continuance of an
Event of Default. (Section 1.1)
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of and any premium and interest on any series of Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
the restrictions, elections, general tax considerations, specific terms and
other information with respect to such issue of Debt Securities and such foreign
currency or currencies or foreign currency unit or units will be set forth in
the applicable Prospectus Supplement. If any index is used to determine the
amount of payments of principal of, premium, if any, or interest on any series
of Debt Securities, special Federal income tax, accounting and other
considerations applicable thereto will be described in the applicable Prospectus
Supplement.
Other than as set forth under "Certain Covenants of XTRA, Inc. and the
Company," and only to the extent applicable to the Debt Securities of a
particular series, as indicated in the applicable Prospectus Supplement, there
are no provisions of the Indentures that afford Holders of the Debt Securities
protection in the event of a highly leveraged transaction involving XTRA, Inc.
or the Company.
SUBORDINATION OF SUBORDINATED SECURITIES
The indebtedness evidenced by the Subordinated Securities will be
subordinated and junior in right of payment to the extent set forth in the
Subordinated Indenture to the prior payment in full of amounts then due on all
Senior Indebtedness (as defined below). No payment shall be made on the
Subordinated Securities, including by way of redemption, purchase, or in any
other manner, if the Subordinated Trustee shall have received notice from XTRA,
Inc., the Company or any Senior Lender (as defined below), that (i) there exists
a default which shall be continuing in the payment of principal of, or premium,
if any, or interest on any Senior Indebtedness, beyond any applicable grace
period with respect thereto, or (ii) there exists a default (other than a
default specified in clause (i) above) with respect to any Senior Indebtedness
which shall be continuing; provided, however, that no notice given with respect
to one or more defaults of the type specified in clause (ii) shall suspend for
longer than 180 days from the date of such notice any payment on Subordinated
Securities that has become due, and only one such notice may be given during any
360-day period.
Upon any distribution of assets of XTRA, Inc. upon any liquidation,
dissolution or other winding-up of XTRA, Inc. whether voluntary or involuntary,
or in bankruptcy or insolvency, all principal of, premium, if any, and interest
due upon all Senior Indebtedness must be paid in full before the Holders of the
Subordinated Securities or the Subordinated Trustee are entitled to receive or
retain any assets so distributed in respect of the Subordinated Securities. By
reason of this provision, in the event of insolvency, Holders of the
Subordinated Securities may recover less, ratably, than other creditors of XTRA,
Inc., including holders of Senior Indebtedness.
Subject to payment in full of all Senior Indebtedness of XTRA, Inc., the
rights of Holders of the Subordinated Securities will be subrogated to the
rights of holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of XTRA, Inc. applicable to Senior Indebtedness.
"Senior Indebtedness" means the principal of, premium, if any, and interest
on (a) all indebtedness of XTRA, Inc. (including indebtedness of others
guaranteed by XTRA, Inc.), other than the Subordinated
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Securities, which is (i) for money borrowed or (ii) evidenced by a note or
similar instrument given in connection with the acquisition of any business,
properties or assets of any kind or in connection with the obtaining of
financing, and (b) amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligation, in any such case whether
outstanding on the date of the Subordinated Indenture or thereafter created,
incurred or assumed, unless in any case in the instrument creating or evidencing
any such indebtedness or obligation or pursuant to which the same is outstanding
it is provided that such indebtedness or obligation is not superior in right of
payment to the Subordinated Securities or it is provided that such indebtedness
or obligation is subordinated to Senior Indebtedness to substantially the same
extent as the Subordinated Securities are subordinated to Senior Indebtedness.
The term "Senior Lender" shall mean any holder of Senior Indebtedness or Senior
Guarantor Indebtedness (as defined below under "Guarantees").
The Subordinated Indenture places no limitation on the amount of additional
Senior Indebtedness or Senior Guarantor Indebtedness that may be incurred by
XTRA, Inc. or the Company. XTRA, Inc. and the Company expect from time to time
to incur additional indebtedness constituting Senior Indebtedness and Senior
Guarantor Indebtedness. As of March 31, 1994, the amount of Senior Indebtedness
was approximately $175 million and the amount of Senior Guarantor Indebtedness
was approximately $175 million.
GUARANTEES
The Company will unconditionally guarantee the due and punctual payment of
principal of, premium, if any, and interest on the Debt Securities, when and as
the same shall become due and payable, whether at the maturity date, by
declaration of acceleration, call for redemption or otherwise, except that
payments under the Guarantees of the Subordinated Securities will be
subordinated to Senior Guarantor Indebtedness to the extent described below. The
term "Senior Guarantor Indebtedness" means all obligations of the Company under
guarantees of Senior Indebtedness of XTRA, Inc. No payment will be made by the
Guarantor under the Guarantee in respect of the Subordinated Securities during
any period that payments by XTRA, Inc. on the Subordinated Securities are
suspended by the subordination provisions of the Subordinated Indenture as
described above under "Subordination of Subordinated Securities." The Guarantees
will remain in effect until the entire principal of, premium, if any, and
interest on the Debt Securities shall have been paid in full or otherwise
discharged in accordance with the provisions of the Indentures. (Section 2.2)
Upon any distribution of assets of the Company upon any liquidation,
dissolution or other winding up of the Company, whether voluntary or
involuntary, or in bankruptcy or insolvency, all amounts due in respect of all
Senior Guarantor Indebtedness must be paid in full before the Holders of the
Guarantees of the Subordinated Securities, or the Subordinated Trustee, are
entitled to receive or retain any assets so distributed in respect of the
Guarantees of the Subordinated Securities. By reason of this provision, in the
event of insolvency, Holders of the Subordinated Securities and the related
Guarantees may recover less, ratably, than other creditors of the Company,
including holders of Senior Guarantor Indebtedness.
Subject to payment in full of all Senior Guarantor Indebtedness, the rights
of the Holders of the Subordinated Securities under the related Guarantees will
be subrogated to the rights of Holders of Senior Guarantor Indebtedness to
receive payments or distributions of cash, property or securities of the Company
applicable to Senior Guarantor Indebtedness.
The Company's sources of funds for payment of its obligations, including
its obligations under the Guarantees of the Debt Securities, are remittances
from its subsidiary, XTRA, Inc. See "Description of Common Stock of XTRA
Corporation -- Holding Company Status."
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more Global Securities which will have an aggregate
principal amount equal to that of the Debt Securities represented thereby. Each
Global Security will be registered in the name of a Depositary or a nominee
thereof identified in the applicable Prospectus Supplement, will be deposited
with such Depositary or nominee or a custodian therefor and will bear a legend
regarding the restrictions on exchanges and registration of transfer thereof
referred to below and any such other matters as may be provided for pursuant to
the Indenture.
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No Global Security may be exchanged in whole or in part for Debt Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the names of Persons other than the Depositary for such Global
Security or its nominee unless (i) such Depositary notifies XTRA, Inc. that it
is unwilling or unable to continue as Depositary for such Global Security or if
at any time such Depositary ceases to be a clearing agency registered under the
Exchange Act, (ii) there shall have occurred and be continuing an Event of
Default with respect to the Debt Securities, (iii) XTRA, Inc. executes and
delivers to the Trustee an order to the effect that the Global Securities shall
be transferable and exchangeable, or (iv) there shall exist such circumstances
in addition to, or in lieu of, the foregoing as may be described in the
applicable Prospectus Supplement. (Sections 3.1. and 3.5) Principal of, premium,
if any, and interest on a Global Security will be payable in the manner
described in the Prospectus Supplement relating thereto. The specific terms of
the depositary arrangements with respect to any portion of a series of Debt
Securities to be represented by a Global Security will be described in the
applicable Prospectus Supplement.
CERTAIN COVENANTS OF XTRA, INC. AND THE COMPANY
LIMITATION ON LIENS OF THE COMPANY.
The Company will not create or permit to exist any mortgage, pledge, deed
of trust or security interest on any of the capital stock, or Indebtedness
convertible into capital stock, of any of its Subsidiaries. (Section 10.7)
LIMITATION ON LIENS OF XTRA, INC.
XTRA, Inc. will not create or permit to exist any mortgage, pledge, deed of
trust, financing lease or security interest ("Liens") on any of its property
whether now owned or hereafter acquired other than:
(i) Liens on Transportation Equipment securing Acquired Equipment
Indebtedness;
(ii) Liens on Transportation Equipment securing Purchase Money
Equipment Indebtedness, but only on the Transportation Equipment in respect
to the purchase of which such Purchase Money Equipment Indebtedness shall
have been incurred;
(iii) Liens on real property;
(iv) Liens incurred or deposits made in the ordinary course of
business (1) in connection with workers' compensation, unemployment
insurance, social security and other like laws, or (2) to secure the
performance of letters of credit, bids, tenders, sales contracts, leases,
statutory obligations, surety, appeal and performance bonds and other
similar obligations not incurred in connection with Indebtedness or (3) in
connection with the opening of commercial letters of credit naming XTRA,
Inc. as an account party;
(v) Liens on Transportation Equipment securing Lease Obligations;
provided, however, that no such Lease Obligations shall arise out of the
Sale and Leaseback of Transportation Equipment unless the Sale and
Leaseback in question is entered into prior to, at the time of or within
180 days of the acquisition of the Transportation Equipment being sold and
leased back; and provided, further, that the leasing of Transportation
Equipment which has been remanufactured so that it is the substantial
equivalent of new equipment shall be considered the leasing of new
equipment and not of the used equipment which was remanufactured and
subsequently sold and leased back; and
(vi) Liens to secure Indebtedness and other obligations (excluding
Subordinated Indebtedness) which are not referred to as permitted Liens in
paragraphs (i), (ii), (iii), (iv) and (v) above; provided, however, that
the aggregate principal amount of Indebtedness and other obligations
secured thereby at any one time outstanding shall not exceed 10% of the
Consolidated Net Worth of XTRA, Inc.;
unless prior to or simultaneously with the inception of any such Lien which is
not referred to as a permitted Lien in paragraph (i), (ii), (iii), (iv), (v) or
(vi) above, XTRA, Inc. shall have executed and delivered to a Security Trustee
(as hereinafter defined), a security agreement or security agreements and such
other documents as the Security Trustee may reasonably request, each in form and
substance satisfactory to the applicable Trustee, granting to the Security
Trustee a security interest in such property subject to such Lien,
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such security interest to be for the equal and ratable benefit of the Holders
and such other holder or holders of Indebtedness with which XTRA, Inc. has
agreed to permit such holders to share in such Lien. Such security agreement or
security agreements may provide, at the option of XTRA, Inc., that the security
interest granted to the Security Trustee thereby shall terminate upon the
termination of all other Liens for the benefit of such other holder or holders
of Indebtedness. The Security Trustee shall be such Person as may be selected by
XTRA, Inc. or any holder of Indebtedness to whom XTRA, Inc. has specifically
granted the right to select such Security Trustee and who shall be entitled to
act without qualification or who, if required, shall qualify to act as such
under the Trust Indenture Act of 1939. (Section 10.8)
CERTAIN DEFINITIONS USED IN THE INDENTURES
"Acquired Equipment Indebtedness" of a Person is defined to mean all
Indebtedness (including all Lease Obligations) of the Person in question if such
Indebtedness (a) is Secured Equipment Indebtedness and (b) was incurred by
another Person prior to the time the Person in question acquired the
Transportation Equipment or Transportation Equipment leases securing such
Secured Equipment Indebtedness from such other Person or prior to the time the
Person in question acquired such other Person and shall include all extensions,
renewals and refinancings of such Indebtedness not in excess of the principal
amount thereof outstanding immediately prior to such extension, renewal or
refinancing.
"Consolidated Net Worth" of a Person is defined to mean, at any date as of
which the amount thereof shall be determined, the sum of the following amounts
which would be set forth on a Consolidated balance sheet of the Person in
question and its Subsidiaries at such date, determined in each case on a
Consolidated basis in accordance with generally accepted accounting principles:
(a) the par value (or values stated on the books of such Person) of the capital
stock of all classes of such Person other than capital stock held in the
treasury of such Person, plus (b) the amount of the Consolidated surplus,
whether capital or earned, of such Person and its Subsidiaries, plus (c)
Subordinated Indebtedness of such Person, plus (d) 50% of the deferred income
tax liability of such Person and its Subsidiaries, less (e) the amount which
would be carried in the asset side of such balance sheet of such Person and its
Subsidiaries in respect of goodwill, trade names, trademarks, patents,
unamortized debt issuance expenses and other intangibles, less (f) any increase
in the value of a fixed asset arising from a revaluation thereof after September
30, 1993.
"Indebtedness" is defined to mean (a) the principal of all indebtedness (i)
for borrowed money or (ii) for the deferred purchase price of property unless
the price thereof was payable in full within 12 months from the date on which
the obligation was created or (iii) evidenced by notes, bonds or other
instruments, (b) all Lease Obligations and (c) all guarantees and other
contingent obligations in respect of the principal of Indebtedness of others;
provided, however, that Indebtedness shall not include Subordinated
Indebtedness.
"Lease Obligation" of a Person is defined to mean all rental obligations
under leases of property (other than electronic data processing and computer
equipment and leases of office space by such Person or its Subsidiaries) either
(a) which are Capitalized Leases, or (b) if not Capitalized Leases, which are
leases of equipment which had an initial term of more than three years
(including any renewal terms at the option of the lessor). The amount of Lease
Obligations shall be equal to the aggregate value of rentals payable (other than
rentals consisting of taxes, indemnities, maintenance items, replacements and
other similar charges which are in addition to the basic financial rent for the
use of the property) by the lessee thereof during the remaining term thereof,
including periods of renewal at the option of the lessor, discounted to present
value using the lessee's "incremental borrowing rate at the inception of the
lease" in accordance with Financial Accounting Standard No. 13 of the Financial
Accounting Standards Board from time to time in effect.
"Purchase Money Equipment Indebtedness" of a Person is defined to mean all
Indebtedness (excluding all Lease Obligations) of such Person which is Secured
Equipment Indebtedness incurred to finance the purchase of Transportation
Equipment if such Indebtedness (a) shall have been incurred within 180 days of
the acquisition of such Transportation Equipment by the Person whose Purchase
Money Equipment Indebtedness is being determined and (b) does not exceed in
principal amount the initial cost of such Transportation Equipment and shall
include all extensions, renewals and refinancings of such Indebtedness not in
excess of the principal amount thereof outstanding immediately prior to such
extension, renewal or
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refinancing. The initial cost of Transportation Equipment may include, in
addition to the purchase price thereof and the purchase price of all accessories
and equipment installed thereon, all freight, delivery and handling charges,
excise, sales and use taxes and all other amounts which may be capitalized and
included in the cost of the equipment under generally accepted accounting
principles.
"Sale and Leaseback", with respect to a Person, means any transaction with
a bank, company, lender or investor providing for the leasing by such Person of
any property which has been or is to be sold or transferred by such Person to
such bank, company, lender or investor, or to any Person to whom funds have been
or are to be advanced by such bank, company, lender or investor on the security
of such property. (Section 10.7)
"Secured Equipment Indebtedness" is defined to mean with respect to a
Person all Indebtedness which is secured by any security interest, mortgage,
charge, pledge, deed of trust, or other similar lien on Transportation Equipment
or on leases of any such Transportation Equipment by the owner thereof and
includes all Lease Obligations. Transportation Equipment which is subject to a
lease or contract which is included as a Lease Obligation is deemed to secure
the Indebtedness evidenced thereby.
"Subordinated Indebtedness" is defined to mean Indebtedness of the Company
or XTRA, Inc. which is expressly subordinated and subject in right of payment to
the prior payment, in bankruptcy or in the event of a payment default on the
Debt Securities or the Guarantees, in full in money or money's worth in
accordance with their terms, of all principal of, premium, if any, and interest
on the Debt Securities or the Guarantees, as applicable. The Subordinated
Securities will constitute Subordinated Indebtedness.
"Subsidiary" of the Company or XTRA, Inc. is defined to mean a corporation
more than 50% of the Voting Stock of which is owned, directly or indirectly, by
the Company, XTRA, Inc. and/or one or more Subsidiaries of the Company or XTRA,
Inc.
"Transportation Equipment" is defined to mean containers, trucks, tractors,
trailers, chassis, cranes, portable ramps, lifting equipment, railroad
locomotives, railroad rolling stock, modular office units, mobile office and
storage trailers and all other transportation equipment, and includes all
accessories and attachments thereto. (Section 1.1)
EVENTS OF DEFAULT
The following are Events of Default under the Indentures with respect to
Debt Securities of any series: (a) failure to pay any interest on any Debt
Security of that series when due, continued for 30 days, in the case of the
Subordinated Securities, whether or not such payment is prohibited by the
subordination provisions of the Subordinated Indenture; (b) failure to pay
principal of any Debt Security of that series when due, in the case of the
Subordinated Securities, whether or not such payment is prohibited by the
subordination provisions of the Subordinated Indenture; (c) default in the
deposit of any sinking fund payment, when due by the terms of the Debt
Securities of that series, in the case of the Subordinated Securities, whether
or not such payment is prohibited by the subordination provisions of the
Subordinated Indenture; (d) failure to perform any other covenant or breach of a
warranty of XTRA, Inc. or the Company in the applicable Indenture (other than a
covenant expressly included in such Indenture solely for the benefit of a series
of Debt Securities other than that series), continued for 60 days after written
notice as provided in the respective Indentures; (e) default by the Company or
XTRA, Inc. with respect to payment of other Indebtedness at its stated maturity
or such as would permit the holder thereof to accelerate the stated maturity of
such Indebtedness, in each case, in a principal amount of $10,000,000 or more if
such Indebtedness is not discharged or such acceleration is not rescinded or
annulled within 10 days after written notice as provided in the Indentures; (f)
certain events in bankruptcy, insolvency or reorganization of the Company or
XTRA, Inc.; and (g) any other Event of Default provided with respect to Debt
Securities of that series. (Section 5.1) If an Event of Default with respect to
Debt Securities of any series at the time outstanding shall occur and be
continuing, either the applicable Trustee or the Holders of at least 25% in
principal amount of the Debt Securities of that series may declare the principal
amount of all Debt Securities of that series (or if any Debt Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount of such Debt Securities as may be specified by the terms thereof) to be
due and payable immediately. However, at any time after a declaration of
acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree
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based on such acceleration has been obtained, the Holders of a majority in
principal amount of the Debt Securities of that series may, under certain
circumstances, rescind and annul such acceleration. (Section 5.2) For
information as to waiver of default, see "Modification and Waiver."
The Indentures provide that, subject to the duty of the respective Trustees
thereunder during default to act with the required standard of care, such
Trustee will be under no obligation to exercise any of its rights or powers
under the respective Indentures at the request or direction of any of the
Holders of the Debt Securities unless they shall have offered to such Trustee
reasonable indemnity. (Section 6.3) Subject to such provisions for
indemnification of the Trustees, the Holders of a majority in principal amount
of the Debt Securities of any series affected will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the applicable Trustee, or exercising any trust or power conferred on such
Trustee, with respect to the Debt Securities of such series. (Section 5.12)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the applicable Indenture, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the applicable Trustee written notice of a
continuing Event of Default with respect to the Debt Securities of that series,
(ii) the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of that series have made written request, and such
Holder or Holders have offered reasonable indemnity, to such Trustee to
institute such proceeding as trustee, and (iii) such Trustee has failed to
institute such proceeding, and has not received from the Holders of a majority
in aggregate principal amount of the Outstanding Debt Securities of that series
a direction inconsistent with such request, within 60 days after such notice,
request and offer. (Section 5.7) However, such limitations do not apply to a
suit instituted by a Holder of a Debt Security for the enforcement of payment of
the principal of or any premium or interest on such Debt Security on or after
the applicable due date specified in such Debt Security. (Section 5.8)
The Company and XTRA, Inc. will each be required to furnish to the Trustees
annually a statement as to whether there is a default in the performance or
observance of certain covenants. (Section 10.9)
DEFEASANCE
Defeasance and Discharge. If so indicated in the applicable Prospectus
Supplement with respect to the Debt Securities of a series, the Company and
XTRA, Inc., at their option, (i) will be discharged from any and all obligations
in respect of the Debt Securities (and Guarantees) of such series (except for
certain obligations to register the transfer or exchange of Debt Securities of
such series, to replace stolen, lost or mutilated Debt Securities of such
series, to maintain paying agencies and to hold monies for payment in trust), or
(ii) will be released from their obligations to comply with the covenants that
are specified under "Certain Covenants of XTRA, Inc. and the Company" above and
other covenants and obligations specified in Section 13.3 of the applicable
Indenture with respect to the Debt Securities of such series, and the occurrence
of an event described in clause (d) under "Events of Default" above with respect
to any defeased covenant and clauses (e) and (g) of the "Events of Default"
above shall no longer be an Event of Default if, in either case, the Company
and/or XTRA, Inc. deposits with the applicable Trustee, in trust, money and/or
U.S. Government Obligations that, through the payment of interest and principal
in respect thereof in accordance with their terms will provide money in an
amount sufficient to pay the principal of and each instalment of interest on the
Debt Securities of such series, on the stated maturity of such payments in
accordance with the terms of the applicable Indenture and the Debt Securities of
such series. Money and/or U.S. Government Obligations so held in trust will not
be subject to the subordination provisions described under "Subordination of
Subordinated Securities." (Sections 13.2 and 13.3) Such a trust may be
established only if, among other things, (i) no Event of Default or event which
with the giving of notice of lapse of time, or both, would become an Event of
Default under the applicable Indenture shall have occurred and be continuing on
the date of such deposit, (ii) no Event of Default described under clause (f)
under "Events of Default" above or event which with the giving of notice or
lapse of time, or both, would become an Event of Default described under such
clause (f) shall have occurred and be continuing at any time during the period
ending on or prior to the 90th day following such date of deposit, and (iii)
XTRA, Inc. delivers to the applicable Trustee an opinion of counsel to the
effect that the Holders of the Debt Securities of such series will not recognize
gain or loss for
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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. (Section 13.4)
In the event the Company and XTRA, Inc. exercise their options to omit
compliance with certain covenants and Events of Default of the applicable
Indenture with respect to the Debt Securities of a series as described under
clause (ii) above and the Debt Securities of such series are declared due and
payable because of the occurrence of any undefeased Event of Default, the amount
of money and U.S. Government Obligations on deposit with the applicable Trustee
may not be sufficient to pay amounts due on the Debt Securities of such series
at the time of the acceleration resulting from such Event of Default. In such a
case, the Company would remain liable for such payments.
MODIFICATION AND WAIVER
Modifications and amendments of the respective Indentures may be made by
the Company, XTRA, Inc. and the Trustee with the consent of the Holders of a
majority in principal amount of the Outstanding Debt Securities of each series
which are affected thereby and 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of all series affected thereby; provided, however,
that no such modification or amendment may, without the consent of each Holder
of such Debt Security affected thereby: (a) change the stated maturity of the
principal of, or any instalment of principal of or interest on, any such Debt
Security; (b) reduce the principal amount of or interest on any such Debt
Securities; (c) change the place or currency of payment of principal of or
interest on any such Debt Security; (d) impair the right to institute suit for
the enforcement of any payment on or with respect to any such Debt Security; (e)
reduce the amount payable upon acceleration of the Maturity of a Debt Security;
(f) in the case of the Subordinated Securities, modify the subordination
provisions in a manner adverse to the Holders of the Subordinated Securities and
the related Guarantees; (g) reduce the above stated percentage of Holders of
Debt Securities which is required for modification or amendment of the
applicable Indenture or for waiver of compliance with certain provisions of the
applicable Indenture or for waiver of certain defaults; or (h) change in any
adverse way the terms of the Guarantees with respect to the payment of the
principal of, premium, if any, and interest on the Debt Securities. (Section
9.2)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of each series and 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of all series affected thereby may on behalf of the
Holders of all Debt Securities of the series waive, insofar as the Debt
Securities of that series are concerned, compliance by the Company and XTRA,
Inc. with certain restrictive provisions of the applicable Indenture. (Section
10.9) The Holders of a majority in principal amount of the Outstanding Debt
Securities of a series may on behalf of the Holders of all Debt Securities of
that series waive any past default under the applicable Indenture with respect
to that series of Debt Securities, except a default in the payment of the
principal of, premium, if any, or interest on any Debt Security of the series or
in respect of any provision which under the applicable Indenture cannot be
modified or amended without the consent of the Holder of each Debt Security of
that series affected. (Section 5.13)
The Indentures provide that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver or other action under the
applicable Indenture as of any date, (i) the principal amount of an Original
Issue Discount Security that will be deemed to be Outstanding will be the amount
of the principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date, (ii) if, as of such date, the
principal amount payable at the Stated Maturity of a Debt Security is not
determinable (for example, because it is based on an index), the principal
amount of such Debt Security deemed to be Outstanding as of such date will be an
amount determined in the manner prescribed for such Debt Security, and (iii) the
principal amount of a Debt Security denominated in one or more foreign
currencies or currency units that will be deemed to be Outstanding will be the
U.S. dollar equivalent, determined as of such date in the manner prescribed for
such Debt Security (or, in the case of a Debt Security described in clause (i)
or (ii) above, of the amount described in such clause). Certain Debt Securities,
including those for whose payment or redemption money
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has been deposited or set aside in trust for the Holders and those that have
been fully defeased pursuant to Section 13.2, will not be deemed to be
Outstanding. (Section 1.1)
Except in certain limited circumstances, XTRA, Inc. will be entitled to set
any day as a record date for the purpose of determining the Holders of
Outstanding Debt Securities of any series entitled to give or take any
direction, notice, consent, waiver or other action under the applicable
Indenture, in the manner and subject to the limitations provided in the
applicable Indenture. In certain limited circumstances, the Trustee will be
entitled to set a record date for action by the Holders. If a record date is set
for any action to be taken by Holders of a particular series, such action may be
taken only by persons who are Holders of Outstanding Debt Securities of that
series on the record date. To be effective, such action must be taken by Holders
of the requisite principal amount of such Debt Securities within a specified
period following the record date. For any particular record date, this period
will be 180 days or such shorter period as may be specified by the Company (or
the Trustee, if it set the record date), and may be shortened or lengthened (but
not beyond 180 days) from time to time. (Section 1.4)
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each of XTRA, Inc. and the Company, without the consent of any Holders of
Debt Securities, may consolidate or merge with or into, or transfer or lease its
assets substantially as an entirety to, any Person, and any other Person may
consolidate or merge with or into, or transfer or lease its assets substantially
as an entirety to, XTRA, Inc. or the Company, provided that (i) the Person (if
other than XTRA, Inc. or the Company) formed by such consolidation or into which
XTRA, Inc. or the Company is merged or which acquires or leases the assets of
XTRA, Inc. or the Company substantially as an entirety is a corporation,
partnership or trust organized and validly existing under the laws of any United
States jurisdiction and assumes XTRA, Inc.'s or the Company's obligations on the
Debt Securities or the Guarantees, as the case may be, and under the Indentures,
(ii) 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 happened and be continuing, and (iii) certain other conditions are
met. (Article Eight)
NOTICES
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register. (Sections
1.1 and 1.6)
TITLE
XTRA, Inc., the Company, the Trustees and any agent of XTRA, Inc., the
Company or the Trustees may treat the Person in whose name a Debt Security is
registered as the absolute owner thereof (whether or not such Debt Security may
be overdue) for the purpose of making payment and for all other purposes.
(Section 3.8)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the law of the State of New York. (Section 1.12)
CONCERNING THE TRUSTEES
The Indentures contain certain limitations on the right of the Trustees,
should they become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize for their own account on certain property received
in respect of any such claim as security or otherwise. (Section 6.13) The
Trustees will be permitted to engage in certain other transactions; however, if
they acquire any conflicting interest and there is a default under the Debt
Securities, they must eliminate such conflict or resign. (Section 6.8)
RELATIONSHIPS WITH SENIOR TRUSTEE
The First National Bank of Boston is the Senior Trustee under the Senior
Indenture. The First National Bank of Boston is one of the banks with which
XTRA, Inc. maintains a commercial banking relationship, the agent bank for one
of XTRA, Inc.'s credit agreements and the transfer agent for the Company's
Common Stock.
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DESCRIPTION OF PREFERRED STOCK OF XTRA CORPORATION
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. The description of certain provisions of the Preferred
Stock set forth below and in any Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Company's Restated Certificate of Incorporation and By-laws, including the
definitions therein of certain terms, and the certificate of designations (each
a "Certificate of Designations") relating to each series of the Preferred Stock
that will be filed with the Commission and incorporated by reference as an
exhibit to the Registration Statement of which this Prospectus is a part at or
prior to the time of the issuance of such series of the Preferred Stock. Copies
of the Restated Certificate of Incorporation and the By-laws are incorporated by
reference as exhibits to the Registration Statement of which this Prospectus is
part.
GENERAL
Under the Company's Restated Certificate of Incorporation, the Company is
authorized to issue up to 3,000,000 shares of Preferred Stock, in one or more
series, with such designations, voting powers, preferences and relative
participating, optional or other special rights, and with such qualifications,
limitations or restrictions thereon, as may be stated or expressed in
resolutions providing for the creation and issuance thereof adopted by the Board
of Directors of the Company. Thus, without stockholder approval, the Board of
Directors could authorize the issuance of Preferred Stock with voting,
conversion and other rights that could dilute the voting power and other rights
of the holders of Common Stock. No Preferred Stock is currently outstanding.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below, unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference is
made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered hereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the number of
shares offered; (ii) the amount of liquidation preference per share; (iii) the
initial public offering price at which such Preferred Stock will be issued; (iv)
the dividend rate (or method of calculation), the dates on which dividends shall
be payable and the dates from which dividends shall commence to cumulate, if
any; (v) any redemption or sinking fund provisions; (vi) any conversion rights;
and (vii) any additional voting, dividend, liquidation, redemption, sinking fund
and other rights, preferences, privileges, limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable and
will have no preemptive rights. Unless otherwise provided in the applicable
Prospectus Supplement, each series of the Preferred Stock will rank on a parity
as to the payment of dividends and amounts upon dissolution, liquidation or
winding up of the Company. The rights of the holders of each series of the
Preferred Stock will be subordinate to those of the Company's general creditors.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of funds
of the Company legally available therefor, cash dividends on such dates and at
such rates as are set forth in, or as are determined by the method described in,
the Prospectus Supplement relating to such series of the Preferred Stock. Such
rate may be fixed or variable or both. Each such dividend will be payable to the
holders of record as they appear on the stock books of the Company on such
record dates, fixed by the Board of Directors of the Company, as specified in
the Prospectus Supplement relating to such series of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the Board
of Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of Preferred Stock for which dividends are
noncumulative, then the right to receive a dividend in respect of the dividend
period ending on such dividend payment date will be lost, and the Company will
have no obligation to pay the dividend accrued for such period, whether or not
dividends on such series are declared payable on any future dividend payment
dates. Dividends on the shares
14
<PAGE> 17
of each series of Preferred Stock for which dividends are cumulative will accrue
from the date on which the Company initially issues shares of such series or
such other dates as may be set forth in the applicable Prospectus Supplement.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as the shares of any series of the Preferred Stock are outstanding, unless (i)
full dividends (including, if such Preferred Stock is cumulative, dividends for
prior dividend periods) have been paid or declared and set apart for payment on
all outstanding shares of the Preferred Stock of such series (other than Junior
Stock, as defined below) and (ii) the Company is not in default or in arrears
with respect to the mandatory or optional redemption or mandatory repurchase or
other mandatory retirement of, or with respect to any sinking or other analogous
fund for, any shares of Preferred Stock of such series (other than Junior
Stock), the Company may not declare any dividends on any shares of Common Stock
of the Company or any other stock of the Company ranking as to the payment of
dividends or amounts upon dissolution, liquidation or winding up of the Company
junior to such series of Preferred Stock (the Common Stock and any such other
stock being herein referred to as "Junior Stock"), or make any payment on
account of, or set apart money for, the purchase, redemption or other retirement
of, or for a sinking or other analogous fund for, any shares of Junior Stock or
make any distribution in respect thereof, whether in cash or property or in
obligations or stock of the Company, other than Junior Stock that is neither
convertible into, nor exchangeable or exercisable for, any securities of the
Company other than Junior Stock and other than as a result of the
reclassification of Junior Stock.
LIQUIDATION PREFERENCES
Unless otherwise specified in the applicable Prospectus Supplement, in the
event of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, the holders of a series of Preferred Stock will be
entitled to receive out of the assets of the Company available for distribution
to stockholders, before any distribution of assets is made to the holders of
Junior Stock, the amount set forth in the Prospectus Supplement relating to such
series of the Preferred Stock. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to the Preferred Stock of any series and any other shares of preferred
stock of the Company (including any other series of the Preferred Stock) ranking
as to the payment of amounts upon the dissolution, liquidation or winding up of
the Company on a parity with such series of the Preferred Stock are not paid in
full, the holders of the Preferred Stock of such series and of such other shares
of preferred stock of the Company will share ratably in any such distribution of
assets of the Company in proportion to the full respective preferential amounts
to which they are entitled. After payment to the holders of the Preferred Stock
of each series of the full preferential amounts of the liquidating distribution
to which they are entitled, the holders of each such series of the Preferred
Stock will be entitled to no further participation in any distribution of assets
by the Company.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from time to
time in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund or otherwise, in each case upon terms, at
the times and at the redemption prices set forth in the Prospectus Supplement
relating to such series. Shares of the Preferred Stock redeemed by the Company
will be restored to the status of authorized but unissued shares of preferred
stock of the Company.
In the event that fewer than all of the outstanding shares of a series of
the Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or pro
rata (subject to rounding to avoid fractional shares) as may be determined by
the Company or by any other method as may be determined by the Company in its
sole discretion to be equitable. From and after the redemption date (unless
default is made by the Company in providing for the payment of the redemption
price plus accumulated and unpaid dividends, if any) dividends will cease to
accumulate on the shares of the Preferred Stock called for redemption and all
rights of the holders thereof (except the right to receive the redemption price
plus accumulated and unpaid dividends, if any) will cease.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as any dividends on shares of any series of the Preferred Stock or any other
series of preferred stock of the Company ranking on a parity as
15
<PAGE> 18
to payment of dividends and amounts upon the liquidation, dissolution or winding
up of the Company with such series of the Preferred Stock are in arrears, no
shares of any such series of the Preferred Stock or such other series of
preferred stock of the Company will be redeemed (whether by mandatory or
optional redemption) unless all such shares are simultaneously redeemed, and the
Company will not purchase or otherwise acquire any such shares; provided,
however, that the foregoing will not prevent the purchase or acquisition of such
shares pursuant to a purchase or exchange offer made on the same terms to
holders of all such shares outstanding.
CONVERSION RIGHTS
The terms, if any, on which shares of Preferred Stock of any series may be
exchanged for or converted (mandatorily or otherwise) into shares of Common
Stock or another series of Preferred Stock will be set forth in the Prospectus
Supplement relating thereto.
VOTING RIGHTS
Except as indicated in a Prospectus Supplement relating to a particular
series of the Preferred Stock, or except as required by applicable Delaware law
or in the Company's Restated Certificate of Incorporation or as described below,
the holders of the Preferred Stock will not be entitled to vote for any purpose.
Unless otherwise specified in the related Prospectus Supplement, if
cumulative accrued dividends on any Preferred Stock have not been paid in an
aggregate amount equal to or greater than six quarterly dividends on such
shares, the Board of Directors shall increase by two the number of directors
(and if necessary amend the By-laws therefor) and the holders of the Preferred
Stock, voting as a single class, will be entitled to elect such additional two
directors to the Board of Directors until all such dividends in default have
been paid in full.
TRANSFER AGENT AND REGISTRAR
Unless otherwise indicated in a Prospectus Supplement relating thereto, The
First National Bank of Boston will be the transfer agent, dividend and
redemption price disbursement agent and registrar for shares of each series of
the Preferred Stock. See "Description of Common Stock of XTRA Corporation --
General."
DESCRIPTION OF COMMON STOCK OF XTRA CORPORATION
The following description of the terms of the Common Stock sets forth
certain general terms and provisions of the Common Stock to which any Prospectus
Supplement may relate. The description of certain provisions of the Common Stock
set forth below and in any Prospectus Supplement does not purport to be complete
and is subject to and qualified in its entirety by reference to the Company's
Restated Certificate of Incorporation and By-laws, including the definitions
therein of certain terms. Copies of the Restated Certificate of Incorporation
and the By-laws are incorporated by reference as exhibits to the Registration
Statement of which this Prospectus is part.
GENERAL
The Company's Restated Certificate of Incorporation authorizes the issuance
of up to 30,000,000 shares of Common Stock, par value $.50 per share, of which
16,935,884 shares have been issued and were outstanding as of June 30, 1994. The
Common Stock of the Company is listed on the New York Stock Exchange and the
additional shares of Common Stock that may be offered hereby will be listed,
subject to notice of issuance, on such exchange.
The Transfer Agent and Registrar for the Company's Common Stock is The
First National Bank of Boston, 100 Federal Street, Boston, Massachusetts 02110.
In New York City, the Common Stock may be presented for transfer at the office
of BancBoston Trust Company of New York, One Exchange Plaza, 3rd Floor, 55
Broadway, New York, New York 10006.
Each holder of Common Stock is entitled to one vote for each share held.
Holders of Common Stock do not have preemptive rights and are not entitled to
cumulative voting in the election of Directors. All
16
<PAGE> 19
outstanding shares of Common Stock are, and the shares of Common Stock that may
be offered hereby when issued will be, fully paid and non-assessable. The Board
of Directors is authorized to issue from time to time all of the authorized but
unissued shares of Common Stock.
In case of any liquidation, dissolution or winding up of the Company, the
holders of Common Stock are entitled to share pro rata in the distribution of
all assets of the Company remaining after the holders of any series of Preferred
Stock have been paid the preference designated for such shares.
Subject to the senior rights of any Preferred Stock, the holders of Common
Stock are entitled to receive dividends when and as declared by the Board of
Directors and paid by the Company from funds legally available therefor. The
Company's source of funds for the payment of cash dividends is advances and
dividends from its subsidiary, XTRA, Inc. Several of the Company's loan
agreements contain restrictions on the payment of cash dividends by the Company,
including limitations restricting dividends to a fixed amount plus consolidated
net income of the Company earned since a date specified in the relevant
agreement. In addition, such loan agreements restrict the payment of advances
and dividends to the Company from its subsidiary, XTRA, Inc.
CERTAIN OTHER PROVISIONS OF THE RESTATED CERTIFICATE OF INCORPORATION
Delaware law permits a corporation to eliminate the personal liability of
its directors to the corporation or to any of its stockholders for monetary
damages for a breach of fiduciary duty as a director, except (i) for breach of
the director's duty of loyalty, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
certain unlawful dividends and stock repurchases or (iv) for any transaction
from which the director derived an improper personal benefit. The Company's
Restated Certificate of Incorporation provides that no director of the Company
will be personally liable to the Company or its stockholders for monetary
damages for any breach of his fiduciary duty as a director, except as provided
by Delaware law.
As permitted by Delaware law, the Company's Restated Certificate of
Incorporation does not permit stockholder action by written consent. The
affirmative vote of the holders of at least 80% of the Company's then
outstanding Common Stock is required to amend, alter or repeal this provision.
The Company's By-laws provide that stockholder nominations of candidates
for election as directors and other stockholder proposals generally must be
received by the Secretary of the Company not less than 60 nor more than 90 days
prior to the applicable stockholders' meeting.
The Company is subject to the provisions of Section 203 of the General
Corporation Law of Delaware. In general, this statute prohibits a publicly-held
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder, unless the
business combination is approved in a prescribed manner. An "interested
stockholder" is a person who, together with affiliates and associates, owns (or
within the prior three years did own) 15% or more of the corporation's voting
stock.
HOLDING COMPANY STATUS
Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of any subsidiary upon its liquidation
or reorganization (and thus the ability of the Company's stockholders to benefit
indirectly from such distribution) would be subject to the prior claims of
creditors of that subsidiary, except to the extent that the Company itself may
be a creditor of that subsidiary with recognized claims.
PLAN OF DISTRIBUTION
The Company and/or XTRA, Inc. may sell Securities to or through
underwriters or to dealers acting as principals for their own account and also
may sell Securities directly to other purchasers or through agents. The Company
and XTRA, Inc. reserve the right to sell Securities directly to investors on
their own behalf in those jurisdictions where they are authorized to do so.
17
<PAGE> 20
Underwriters may offer and sell the Securities at a fixed price or prices
that may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Company or
XTRA, Inc. also may, from time to time, authorize dealers, acting as the
Company's or XTRA, Inc.'s agents, as the case may be, to offer and sell the
Securities upon such terms and conditions as set forth in the related Prospectus
Supplement. In connection with the sale of the Securities, underwriters may
receive compensation from the Company or XTRA, Inc. in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of the
Securities for whom they may act as agent. Underwriters may sell the Securities
to or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents.
Any underwriting compensation paid by the Company or XTRA, Inc. to
underwriters or agents in connection with the offering of the Securities, and
any discounts, concessions or commissions allowed by underwriters to
participating dealers, will be set forth in the related Prospectus Supplement.
Dealers and agents participating in the distribution of the Securities may be
deemed to be underwriters, and any discounts and commissions received by them
and any profit realized by them on resale of the Securities may be deemed to be
underwriting discounts and commissions. Underwriters, dealers and agents may be
entitled, under agreements entered into with the Company and/or XTRA, Inc., to
indemnification against and contribution towards certain civil liabilities.
If so indicated in a Prospectus Supplement, the Company and/or XTRA, Inc.
will authorize underwriters or other persons acting as the Company's and/or
XTRA, Inc.'s agents to solicit offers by certain institutions to purchase
Securities from the Company and/or XTRA, Inc. pursuant to contracts providing
for payment and delivery on a future date. Institutions with which such
contracts may be made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
others, but in all cases such institutions must be approved by the Company
and/or XTRA, Inc. The obligations of any purchaser under any such contract will
be subject to the condition that the purchase of the Securities shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
Any Securities issued hereunder (other than Common Stock) will be new
issues of securities with no established trading market. Neither the Company nor
XTRA, Inc. currently intends to apply for the listing of any Securities (other
than the Common Stock) on any national securities exchange. No assurance can be
given as to the liquidity of the trading market for any such Securities.
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for XTRA, Inc. or the
Company in the ordinary course of business.
VALIDITY OF SECURITIES
The validity of the Securities offered hereby will be passed upon for XTRA,
Inc. and the Company by Ropes & Gray, One International Place, Boston,
Massachusetts 02110, and for any underwriter or agent by Sullivan & Cromwell,
125 Broad Street, New York, New York 10004.
EXPERTS
The audited consolidated financial statements and schedules of the Company
incorporated by reference in this Prospectus have been audited by Arthur
Andersen & Co., independent public accountants, as indicated in their report
with respect thereto, and are incorporated by reference herein in reliance upon
the authority of said firm as experts in giving said report.
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<PAGE> 21
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OTHER THAN THE SECURITIES DESCRIBED IN THIS PROSPECTUS OR AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCE IN WHICH
SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR XTRA,
INC. SINCE THE DATE HEREOF OR THEREOF OR THAT THE INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE
DATE OF SUCH INFORMATION.
------------------------
TABLE OF CONTENTS
PROSPECTUS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
The Company........................... 2
Use of Proceeds....................... 3
Consolidated Ratios of Earnings to
Fixed Charges and Consolidated Ratio
of Earnings to Combined Fixed
Charges and Preferred Stock
Dividends........................... 3
Description of Debt Securities of
XTRA, Inc........................... 4
Description of Preferred Stock of XTRA
Corporation......................... 14
Description of Common Stock of XTRA
Corporation......................... 16
Plan of Distribution.................. 17
Validity of Securities................ 18
Experts............................... 18
</TABLE>
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$500,000,000
XTRA CORPORATION
PREFERRED STOCK
COMMON STOCK
XTRA, INC.
DEBT SECURITIES
GUARANTEED AS TO THE PAYMENT
OF PRINCIPAL, PREMIUM, IF ANY,
AND INTEREST BY XTRA CORPORATION
-----------------
PROSPECTUS
-----------------
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<PAGE> 22
<TABLE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<S> <C>
SEC Registration fee ................................................ $141,379
Printing and engraving expenses ..................................... 50,000
Fees and expenses of Trustee, Transfer Agent and Registrar........... 15,000
Accounting fees and expenses ........................................ 20,000
Legal fees and expenses ............................................. 150,000
Blue sky fees and expenses (including fees of counsel) .............. 35,000
Rating Agency fees .................................................. 50,000
Miscellaneous ....................................................... 38,621
Total .......................................................... --------
$500,000
<FN> ========
* All amounts except the SEC Registration fee are estimated.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware, in which XTRA
Corporation is incorporated, gives a corporation power to indemnify any of its
officers or directors against certain expenses, judgments, fines and amounts
paid in settlement in connection with certain actions, suits or proceedings,
provided generally, that such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. In addition, the
statutes of Delaware contain provisions to the general effect that any
director shall in the performance of his duties be fully protected in relying
in good faith upon the books of account or records of the corporation or
statements prepared by any official of the corporation.
The Restated Certificate of Incorporation of XTRA Corporation includes
the following provision:
This corporation shall, to the maximum extent permitted from time to
time under the law of the State of Delaware, indemnify and upon request
shall advance expenses to any person who is or was a party or is
threatened to be made a party to any threatened, pending or completed
action, suit, proceeding or claim, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was
or has agreed to be a director or officer of this corporation or while a
director or officer is or was serving at the request of this corporation
as a director, officer, partner, trustee, employee or agent of any
corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against
expenses (including attorney's fees and expenses), judgments, fines,
penalties and amounts paid in settlement incurred in connection with the
investigation, preparation to defend or defense of such action, suit,
proceeding, or claim; provided, however, that the foregoing shall not
require this corporation to indemnify or advance expenses to any person
in connection with any action, suit, proceeding, claim or counterclaim
initiated by or on behalf of such person. Such indemnification shall not
be exclusive of other indemnification rights arising under any by-law,
agreement, vote of directors or stockholders or otherwise and shall inure
to the benefit of the heirs and legal representatives of such person.
Any repeal or modification of the foregoing provisions of this Article 9
shall not adversely affect any right or protection of a director or
officer of this corporation existing at the time of such repeal or
modification.
The Business Corporation Act of the State of Maine, in which XTRA, Inc.
is incorporated, gives a corporation power to indemnify any of its officers or
directors against certain expenses, judgements, fines, and amounts paid in
settlement in connection with certain actions, suits or proceedings, provided
generally, that such person acted in good faith and in the reasonable belief
that his action was in the best interests of the corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to believe that
his conduct was unlawful. In addition, the statute provides that if a
director or officer is successful in the merits or otherwise in defense of
certain actions, suits or proceedings against him, while serving as a director
or officer of the corporation, the corporation shall indemnify him against
expenses reasonably incurred in defense of such claim, including attorney's
fees.
The By-laws of XTRA, Inc. include the following provisions:
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<PAGE> 23
The corporation shall indemnify any person who is or was a director,
officer, employee or agent of the corporation, or who is or was serving in
another capacity at the request of the corporation, to the extent authorized
by the Maine Business Corporation Act and may purchase and maintain insurance
to protect itself against liability for such indemnification.
In addition, XTRA Corporation maintains a directors' and officers'
liability insurance policy.
XTRA Corporation has entered into Indemnification Agreements, the form of
which was approved by the stockholders of XTRA Corporation, with certain
officers of XTRA Corporation and its subsidiaries, including XTRA, Inc. The
Indemnification Agreements provide a number of procedures, presumptions and
remedies used in the determination of the right of the officer to
indemnification. These procedures, presumptions and remedies substantially
broaden the indemnity rights of officers beyond that provided by XTRA
Corporation's Restated Certificate of Incorporation described above. If an
action against an indemnified party is dismissed with or without prejudice,
the defense is deemed to have been successful and the indemnification is
required to be made. The Indemnification Agreements provide that expenses
must be paid within twenty days of any request and that a determination of
entitlement must be made within sixty days of the indemnification request
(otherwise a determination in favor of the indemnified party is deemed to have
been made). If there is a change in control of XTRA Corporation (as defined
in the Indemnification Agreement), the indemnified party is presumed to be
entitled to indemnification (although XTRA Corporation may overcome this
presumption), the indemnified party may require that independent counsel make
the determination of entitlement and may choose such counsel, subject to
objection by the Company on limited grounds. If a determination of
entitlement is made, XTRA Corporation is bound, but if the indemnified party
has previously been denied indemnification pursuant to the terms of the
Indemnification Agreement he or she is entitled to seek a de novo
determination from a court. XTRA Corporation is precluded from challenging
the validity of the procedures and presumptions contained in the
Indemnification Agreement in any court proceeding. The Indemnification
Agreement covers proceedings brought on or after the date of the execution of
the particular Indemnification Agreement, including proceedings based on acts
prior to the date of the particular agreement.
<TABLE>
ITEM 16. EXHIBITS.
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C> <C>
4.1 - Restated Certificate of Incorporation of the Company. (Filed with the Securities and
Exchange Commission as Exhibit 3.1 to Registrant's Annual Report on Form 10-K for
the year ended September 30, 1989, incorporated herein by reference).
4.2 - Certificate of Elimination of Designation, Preference and Rights of Series A Participating
Preferred Stock. (Filed with the Securities and Exchange Commission as Exhibit 3.1 to
the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1991,
incorporated herein by reference).
4.3 - Certificate of Amendment of Restated Certificate of Incorporation. (Filed March 5, 1993
with the Securities and Exchange Commission as Exhibit 4.4 to the Registrant's
Registration Statement on Form S-3, File No. 33-59132, incorporated herein by
reference).
4.4 - Certificate of Elimination of Designation, Preference and Rights of $1.9375 Series B
Cumulative Convertible Preferred Stock. (Filed March 5, 1993 with the Securities and
Exchange Commission as Exhibit 4.5 to the Registrant's Registration Statement on
Form S-3, File No. 33-59132, incorporated herein by reference).
4.5 - Certificate of Elimination of Designation, Preference and Rights of Series C Cumulative
Redeemable Exchangeable Preferred Stock of the Company.
4.6 - By-laws of the Company. (Filed with the Securities and Exchange Commission as
Exhibit 3(b) to Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1990, incorporated herein by reference).
4.7 - Form of Indenture by and among XTRA, Inc., XTRA Corporation and The First National
Bank of Boston.
4.8 - Form of Subordinated Indenture.
5 - Opinion of Ropes & Gray.
12.1 - Statement regarding computation of ratio of earnings to fixed charges of XTRA Corporation.
12.2 - Statement regarding computation of ratio of earnings to combined fixed charges and preferred stock dividends
of XTRA Corporation.
12.3 - Statement regarding computation of ratio of earnings to fixed charges of XTRA, Inc.
23.1 - Consent of Arthur Andersen & Co.
23.2 - Consent of Ropes & Gray (included in Exhibit 5).
</TABLE>
II-2
<PAGE> 24
<TABLE>
<S> <C> <C>
24 - Power of Attorney (included under Signatures and Power of Attorney).
25 - Form T-1 Statement of eligibility and qualification under the Trust Indenture Act of
1939, as amended, of The First National Bank of Boston, as Senior Trustee.
</TABLE>
_______________
The form or forms of Securities with respect to each offering of
Securities registered hereunder will be filed as an exhibit to a Current
Report on Form 8-K of XTRA Corporation and will be incorporated herein by
reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrants pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the registrants' annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) To file an application for the purposes of determining the
eligibility of the Subordinated Trustee to act under Subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the
Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrants pursuant to the provisions described in Item 15 above, or
otherwise, the Registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrants of expenses incurred or paid by a director, officer,
or controlling person of the Registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrants will, unless in the opinion of their counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by them is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements to file on Form S-3 and has duly caused this amended
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Boston, Commonwealth of Massachusetts, on the
3rd day of August, 1994.
XTRA CORPORATION
By: /s/ LEWIS RUBIN*
-------------------------------------
LEWIS RUBIN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this amended
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ ROBERT B. GOERGEN* Chairman of the Board and August 3, 1994
- ------------------------------- Director
ROBERT B. GOERGEN
/s/ ROBERT M. GINTEL* Vice Chairman of the Board August 3, 1994
- ------------------------------- and Director
ROBERT M. GINTEL
/s/ LEWIS RUBIN* President, Chief Executive August 3, 1994
- ------------------------------- Officer (Principal Executive
LEWIS RUBIN Officer) and Director
/s/ MICHAEL J. SOJA* Vice President, Finance and August 3, 1994
- ------------------------------- Chief Financial Officer
MICHAEL J. SOJA (Principal Financial Officer)
/s/ ROBERT B. BLAKELEY* Controller (Principal August 3, 1994
- ------------------------------- Accounting Officer)
ROBERT B. BLAKELEY
Director
- -------------------------------
GILBERT BUTLER
/s/ J. RUSSELL DUNCAN* Director August 3, 1994
- -------------------------------
J. RUSSELL DUNCAN
/s/ HERBERT C. KNORTZ* Director August 3, 1994
- -------------------------------
HERBERT C. KNORTZ
/s/ JOHN J. LEE* Director August 3, 1994
- -------------------------------
JOHN J. LEE
/s/ FRANCIS J. PALAMARA* Director August 3, 1994
- -------------------------------
FRANCIS J. PALAMARA
/s/ MARTIN L. SOLOMON* Director August 3, 1994
- -------------------------------
MARTIN L. SOLOMON
*By /s/ JAMES R. LAJOIE
- -------------------------------
JAMES R. LAJOIE August 3, 1994
as Attorney-in-fact
Pursuant to Power of Attorney
Included in Part II of
Form S-3 Filed July 26, 1994
(File No. 33-54747)
</TABLE>
<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements to file on Form S-3 and has duly caused this amended
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Boston, Commonwealth of
Massachusetts, on the 3rd day of August, 1994.
XTRA, INC.
By: /s/ LEWIS RUBIN*
----------------------
Lewis Rubin, President
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this amended
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ LEWIS RUBIN* President (Principal August 3, 1994
- -------------------------------- Executive Officer), and
LEWIS RUBIN Director
/s/ MICHAEL J. SOJA* Vice President, Finance and August 3, 1994
- -------------------------------- Chief Financial Officer
MICHAEL J. SOJA (Principal Financial Officer)
and Director
/s/ JAMES R. LAJOIE Vice President, General August 3, 1994
- -------------------------------- Counsel and Director
JAMES R. LAJOIE
/s/ ROBERT B. BLAKELEY* Controller (Principal August 3, 1994
- -------------------------------- Accounting Officer)
ROBERT B. BLAKELEY
*By /s/ JAMES R. LAJOIE August 3, 1994
- --------------------------------
JAMES R. LAJOIE
as Attorney-in-Fact
Pursuant to Power of Attorney
Included in Part II of Form
S-3 filed July 26, 1994
(File No. 33-54747)
</TABLE>
